Robert L. , Dallas TX email@example.com 01/09/07
fraud in the mediation?
I would assume that the alleged malpractice probably would involve advice by the attorney to settle or not to settle. While that could happen, the chances seem fairly remote.
But, what about the claim that one side made a fraudulent statement to induce the settlement? Or, worse, an illegal threat?
There is Texas authority that fraud allegations trump the confidentiality rule.
If allegedly fraudlent statements are to be admissible, then parties will hesitate to let their hair down and level with the other party or perhaps even the mediator.
I have been in mediations in which the level of distrust was so high that one or both parties were unwilling to say anything because of this concern.
The author's comments on this issue would be appreciated.
Jon Linden, Warren NJ firstname.lastname@example.org 12/22/06
Calif/UMA Confidentiality = Immunity
I must admit naively after 7 years of full time mediating and over 4000 hours of face to face mediation time, that they thought of attorney malpractice by the mediator OR one or BOTH attorney's for the parties.
While it did make me sit up and take notice, I was comforted in the knowledge that the type of situation you describe rarely happens.
I would admit, I would have to give the statute some thought, even thought normally I would be arguing for Confidentiality, I can see how the potential for "malpractice" might make this a problem. I guess it comes from not being an attorney mediator or maybe just because I am trying to be open minded.
Rick , Windsor On email@example.com 12/18/06
Disclosure of Confidential Material-Courts
Was wondering if anyone is aware of any cases in the Canadian Court System concerning the issues of confidentiality and how the courts have viewed this subject? Aside from the industry standard disclosure of potential threats of violence, abuse or disclosure of a criminal act, have there been any cases where the Cdn. courts have addressed this issue?
If you could cite any cases or areas of reference, it would be appreicated.
Stan Moore, Spokane WA firstname.lastname@example.org 12/13/06
Much Ado About Nothing
While this is an interesting article, as a pedantic and hypothetical sort of discussion, what is the real world harm which realistically might come to a client from the claimed over-abundance of confidentiality afforded by the cited rules and statutes? I believe the statutory inconsistencies only illustrate how difficult it is to legislate this area of mediation. More importantly, such legislative nit-picking over confidentiality is needless in my opinion.