For the past twenty years of my full-time ADR practice, I have confidently said to the parties in mediation something like “Nothing that you say here can be used against you, even if we don’t resolve the dispute today in mediation.”
I felt comfortable giving this assurance, largely because of the breadth of Rule 408 of the Maine Rules of Evidence, which states in part: “Evidence of conduct or statements made in compromise negotiations or in mediation is also not admissible on any substantive issue in the dispute between the parties.”
Similarly, at least since 2002, I have also had the backing of Rule 16B, which states in part: “A neutral who conducts an alternative dispute resolution conference pursuant to this rule, or an alternative dispute resolution process pursuant to subsection (b) (6), shall not, without the informed written consent of the parties, disclose the outcome or disclose any conduct, statements, or other information acquired at or in connection with the ADR conference.”
Grounded in these rules, I would often explain to mediation parties the policy behind confidentiality. I would say something like, “I need you to be as candid and creative with me and with each other as you possibly can, if we’re going to resolve this dispute here and now, today. You probably wouldn’t be so candid if you were worried about whether someone would use your ideas against you later on.”
With the Law Court’s recent enactment of new Rule 514, of the Maine Rules of Evidence (to become effective January 1, 2009), all my confidence in mediation confidentiality has been thrown into question.
The new rule says that “A mediating party has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications.” However, that privilege ONLY applies to a “statement, whether oral or written, between a mediating party or representative of a mediating party and a mediator made outside the presence of others during the course of mediation proceedings [i.e. in a caucus] and that is not intended to be disclosed to third persons.”
In other words, pursuant to the new rule, parties MAY disclose any statements, proposals, thoughts or ideas made by either of them in joint (parties and mediator) session. I can think of innumerable reasons and circumstances under which a party may now claim at trial, “Well you said ‘X’ at mediation and now you’re saying ‘Y’. Which one should we believe?”
In a letter to the Law Court during its consideration of proposed Rule 514, the Maine Association of Mediators warned against the “unintended consequences” of this provision:
“The major defect in this proposal is that it pushes participants away from direct negotiation with each other and toward a process focused on separate meetings (usually called the caucus format). The basic underlying strength of mediation is the empowerment of the participants through direct negotiation with each other [emphasis in original] to reach a satisfactory resolution of their dispute. If statements made in the presence of “others” during the course of mediation proceedings are not “confidential communications,” then the content of such direct negotiations will become more guarded and therefore less likely to result in full resolution of the dispute. … mediators will become entangled in the disputants’ subsequent litigation should the mediation not result in settlement and the disputants disagree about what was disclosed in any mediation session where all participants were present.”
Simply put, the loss of confidentiality for joint sessions will reduce the opportunity for parties to talk directly with each other and to talk as openly. Doing away with joint sessions, which have been standard practice in many types of cases (especially divorce and business cases), changes the rules of the game in a way that could make mediation less effective.
The Association approved of the privilege afforded to the mediator under Section (d): “nor shall a mediator be compelled to disclose in any subsequent judicial or administrative proceeding any communication made between him or her and any participant in the mediation process in the course of, or relating to the subject matter of, any mediation.”
However, the Association noted with disapproval the exception to this mediator protection contained in Subsection (e)(7), which states that a mediator may be compelled to testify about “communications that a court, administrative agency, or arbitrator finds, after a hearing in camera, that the disclosure of which is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of a sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.” The Association complained that this exception “is a catch-all exception which, like all catch-all exceptions, has the potential to swallow the proposed privilege.”
This exception adds a high degree of uncertainty about whether disclosure of communications in mediation could be compelled at some future point and makes it very difficult to advise parties about their confidentiality rights at the start of mediation. This exception makes it potentially risky for parties to share information and discuss their objectives at mediation.
Oh well. Too bad. The Law Court chose to ignore such dire warnings and enacted the Rule as proposed by the Rules of Evidence Advisory Committee. The mediators had their chance, raised their objections, and were overruled.
So what do we do now? While mindful of the negative way in which unsolicited advice is often received, I nevertheless offer the following respectful suggestions to mediators, counsel for parties in mediation and the judiciary.
For those mediating cases under Rule 16B or by agreement of the parties, it is now ESSENTIAL that you ask the parties to sign a basic Agreement to Mediate, in which you explicitly state the reach of confidentiality in mediation.
My Agreement reads in part: “All statements made during the mediation are in the nature of privileged settlement discussions and are not discoverable by either Party or admissible for any purposes in any proceeding. Statements and proposals made by the Parties or Mediator, including admissions made during the course of the mediation, shall not be relied upon or introduced by either Party in any administrative, arbitral or judicial proceeding. The privileged nature of any information is not altered by disclosure to the Mediator.”
My Agreement also asks the parties to agree that “the mediator will not be subpoenaed to disclose information or to testify in any proceeding as to information received or prepared by him or to representations or to proposals made to him or by him during the course of mediation.”
What would happen if, despite their Agreement, a party sought to compel the mediator’s testimony at trial? Colleagues in other states have protected against such a possibility by inserting in their Agreements the following: “It is specifically agreed that breaching this agreement will cause irreparable injury and that monetary damages will be an inadequate remedy, and accordingly, any party to this agreement may obtain an injunction to prevent disclosure of confidential information in violation of this agreement. If any participant breaches this agreement, that participant shall be liable for and shall indemnify the other parties and the Mediator for all reasonable costs, expenses and fees, including attorney’s fees, which may be incurred as a result of such breach.”
Despite the provisions of Rule 514, I see nothing to prohibit the parties from voluntarily agreeing to a contract which explicitly sets forth their expectations of confidentiality. At the very least, if a party later seeks at trial to introduce evidence based on statements at mediation, she must overcome her voluntary agreement to be bound by confidentiality, as contained in an Agreement to Mediate.
Absent such an Agreement, mediators can only offer the parties a diluted sense of confidentiality protection. My historic assurance of confidentiality would have to be modified to say, “Nothing you say today can be used against you, UNLESS you say it in joint session.
Even with such an Agreement, I think it is an open question as to whether you should advise parties in mediation that there is a greater degree of confidentiality when in caucus as opposed to a joint session.
In District Court, where Agreements to Mediate are not used, court (CADRES) mediators may need to start using them or come up with a similar device to counteract their inability to promise confidentiality, in light of Rule 514. Unless such a device is implemented in District Court mediation, the mediators and parties in divorce, small claims and eviction cases will likely be hampered in resolving cases and will be subject to pressure for disclosure and admission of statements made during mediation.
I suppose my suggestions here will depend on the extent to which counsel see the mediation as a real opportunity to problem solve and resolve the dispute. Of course, some lawyers use mediation as a chance for “cheap discovery,” or to assess the strengths and weaknesses of their adversary’s case, in preparation for the inevitable trial.
My experience, however, is that most Maine lawyers use mediation as a real opportunity to resolve the case. To you, I suggest you have your client sign an Agreement to Mediate which sets out a broad reach of confidentiality. If your mediator doesn’t have one, draft one of your own. Otherwise, mediation has the potential to become a trap for the unwary.
The cautious attorney may also counsel her clients NOT to say anything which might display any weakness in the case, or be deemed as an admission against interest, while in joint session. Save those confidences for a private discussion (caucus) with the mediator. Sadly, this looks like a net loss for mediation as an effective tool.
I suspect that with or without my suggestions, some attorneys in cases which were not resolved in mediation will claim at trial that a “manifest injustice” would occur if they were prevented from introducing evidence of statements made at mediation.
To the Judiciary:
Any lawyer treads carefully when making suggestions to the bench. However, I know that the Law Court has recognized the value and efficacy of mediation. I would certainly hope that all Maine judges would similarly recognize that confidentiality in mediation is one of the primary reasons that mediation works as well as it does. Upholding the confidentiality provisions in signed Agreements to Mediate will be critical to maintaining the viability of mediation.
Confusingly, MRE Rule 408 apparently remains in effect; at least, no changes to it have been announced so far. That means that discussion of the new mediation privilege should not even come up unless the issue at stake is not a substantive issue under Rule 408(a).
The “manifest injustice” exception of section (e)(7) tracks some provisions of the Uniform Mediation Act, but does not include the language contained in the UMA, which allows a court to allow evidence of statements made at mediation ONLY if “the evidence is not otherwise available.” Even absent such a provision, I would hope that the judiciary would question counsel carefully about why the proposed mediation evidence could not have been discovered in other ways. And I would hope that even though “manifest injustice” is not defined, the standard for applying the exception would be a true miscarriage of justice, and rarely applied.
Finally, I suggest that the judiciary permit the mediator whose testimony is sought to be present and present argument at the “in camera” hearing in which the judge will consider whether to compel the mediator’s testimony. I suspect the court will discover what most mediators routinely say, that we can’t remember if a particular statement was made in caucus or in joint session. If it was in fact made during a caucus, presumably it will be deemed a “confidential communication” under Rule 514 and the court will never even need to reach the question of whether a “manifest injustice” can only be prevented by compelling the mediator’s testimony.
All of us—mediators, lawyers and judges—are in for a period of adjustment as the new Rule 514 plays itself out. During this period, let us not forget or compromise the benefits often cited for mediation: greater party satisfaction, expedited resolution, and lower costs.
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