Mediator Malpractice Overview > Mediator Malpractice/Tconf. > Confidentiality Exceptions
Possible Exceptions to Confidentiality in Mediation
Most states now have a confidentiality statute delineating what the confidentiality is and whether it is a privilege or statutory. Some apply to the mediator individually as well as the parties. It is most important that you first determine the extent to which your state provides confidentiality to whom.
Next, determine whether or not there are any other confidentiality rules or laws that apply to your mediation. For instance, if this is a post judgment matter or the parties have moved to different states, you might assume that your state governs. This may not be the case. In the alternative, the party from out of state may very well come in with a lawyer from out of state who also needs to know what confidentiality applies to this mediated case.
Another complication could be the application of the Uniform Mediation Act which provides even more questions than it answers on mediation confidentiality.
After you are certain of the extent to which you are covered by your own rules and laws, be aware that the federal government does not necessarily recognize any of the state laws or rules. The Federal Supremacy Clause would trump the state laws and rules. Therefore, the Internal Revenue Service, the Federal Bureau of Investigation, Home Land Security, the SEC and a host of other possible federal agencies could easily come in and subpoena you the mediator, your notes and anything else they wanted out of the mediation without necessarily recognizing or giving deference to your state law.
On a state level, it is not unusual to find child abuse, elder abuse, domestic violence rules and laws requiring disclosure. In addition, many mediators who maintain a primary profession as a lawyer, psychologist or otherwise have their own reporting requirements which they have to decide whether they override the confidentiality that the mediator enjoys. I am unaware of any cases that have resolved a possible conflict between the mediator's obligations and the professional requirements of that mediator as a lawyer or a psychologist.
The real difficulty that any mediator faces is how extensive their discussion of confidentiality is in their opening statement. Each mediator must individually decide when and how many of the exceptions to confidentiality there are and to be discussed. If you choose to make an extensive disclosure, you run the risk of creating a "chilling" effect on everyone and the possiblity of shutting down the mediation before it begins. On the other hand, if you fail to disclose an exception and someone discloses information that might very easily constitute a requirement of reporting or otherwise, you face the possibility of liability to that individual who could claim that they were not warned in advance.
This is one of the most difficult areas for the mediator and must be approached very cautiously. Much has been written about the problem but very little about solutions. Unfortunately, sometimes vagueness has its virtues.
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