From the Disputing Blog of Karl Bayer, Victoria VanBuren, and Holly Hayes.
A recent post on the “bad faith mediation” section of Texas HB 2256 has prompted comments and discussion regarding the confidentiality of mediation.
Texas mediators operate under the Civil Practice & Remedies Code, Chapter 154. Alternate Dispute Resolution Procedures. Specific sections of this code that address confidentiality are as follows:
§ 154.053. STANDARDS AND DUTIES OF IMPARTIAL THIRD PARTIES.
(a) A person appointed to facilitate an alternative dispute resolution procedure under this subchapter shall encourage and assist the parties in reaching a settlement of their dispute but may not compel or coerce the parties to enter into a settlement agreement.
(b) Unless expressly authorized by the disclosing party, the impartial third party may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute.
(c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.
A future post will examine the confidentiality sections of the Uniform Mediation Act (UMA) for those states who have adopted the Act. The Association for Conflict Resolution (ACR) listed confidentiality in mediation as the number one principle that should be addressed in the adoption of a UMA, stating that confidentiality is an area where uniformity is required across the states.
In her article, “Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?“, Karin S. Hobbs gives a good summary of the importance of confidentiality in mediation:
Why is confidentiality so important? Confidentiality is a critical element of successful mediation. In order for the mediator, the attorneys and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly. Frequently, some of the motivating forces behind lawsuits are legally irrelevant and yet exceptionally important to understanding the conflict and facilitating resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want disclosed to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator’s role and the potential for resolution are significantly diminished.
The support of confidentiality in mediation is critical to the protection of the entire mediation process. Future posts will attempt to provide additional information on confidentiality statutes and a survey of key cases interpreting the provisions.
Collaborative lawyer and ADR professional David Hoffman, in an op-ed in the Christian Science Monitor, asks, “Microsoft and Yahoo: Where were the mediators?“ David makes the strong case that mediation...By Diane J. Levin