The Silent Space: Mediation Confidentiality, the Right to Privacy, and the Mediator’s Role

Just Court ADR by Susan M. Yates,Jennifer Shack, Heather Scheiwe Kulp, and Jessica Glowinski.

n her recent article in The Ohio State Journal on Dispute Resolution (and in previous articles here and a workshop here), Susan Oberman discusses the tension between mediation’s promotion of confidentiality and the constitutional right to privacy. While the article examines extensively the history of privacy, confidentiality, and constitutional/state law, I want to point mediators and court mediation program administrators to an issue of particular relevance for their practice.

First, let’s explore a bit more about confidentiality in mediation:

Why do mediators care so much about confidentiality?

Primarily, confidentiality protects parties from being bound by options they discuss during mediation and setting precedent for other situations with agreements they make in individual cases. In turn, it:
Promotes participation by parties
Promotes exploration of creative options
Confidentiality also:
Protects mediator from having to share information in court or elsewhere
Distinguishes mediation from a court hearing
Why would absolute confidentiality be a problem?

May hide bad/unjust/illegal/unethical behavior
Why would lack of clarity about confidentiality be a problem?

If the court or mediators do not let parties know that mediation may not be confidential, because of many exceptions, parties may have the impression that mediation sessions have blanket confidentiality and thus reveal things that could jeopardize them later
If parties do not understand that a court can override confidentiality protections, parties may make an undesirable or illegal agreement and not know about, and thus seek to exercise, their due process right to seek redress
It may falsely promote open exploration of options when those discussions could be used later
Confidentiality provisions differ considerably state-to-state, including whether the state has adopted the Uniform Mediation Act, so unless a court or mediator explains the local provisions, a party may have an expectation that mediation in one state is the same as mediation in the next
Blanket confidentiality can help create a more equal playing field for mediation parties; so, if the setting is not actually confidential (but the parties or one party believe it is), the inequality between parties (here, Oberman is most concerned about disadvantaged minority groups) may be exaggerated in any agreement or post-mediation proceedings.
The lack of clarity may falsely promise privacy when there is limited privacy
Especially when she perceives that an increasing number of court mediation programs require (whether formally or informally) the litigant to go to mediation, thus giving the party the impression that the judge is ordering (coercing?) a party to participate in a process that may or may not be private, Oberman wonders whether court mediation violates the constitutional right to privacy. Oberman argues that if people do not know what rights they forego to participate in mediation, or what rights they have in such a process, the courts—and mediators as representatives of the courts—are violating their constitutional rights.

She argues that informed consent, not confidentiality, is the basis for self-determination in mediation. Oberman is not saying that confidentiality is not worthwhile; in fact, she promotes recognizing confidentiality as an application of the constitutional right to privacy and preserving its use in mediation. But, to ensure that litigants’ constitutional rights are preserved requires that parties “be made aware of the limitations of confidentiality within the legal framework.”

This necessitates that court-connected mediators, who Oberman says “function as representatives of the law and the court,” should inform parties accurately about “the legal rights and limitations represented in the choice to maintain or waive confidentiality in mediation.” The responsibility of mediators with regards to a party’s right to privacy, she continues, is to 1) give accurate legal information about confidentiality and privilege that applies; 2) ensure parties understand the information; and 3) determine that parties are capable of making a decision in their own best interest.

I can hear the cringing already. Mediators giving information? Mediators, who may or may not be attorneys, being responsible for informing people of their legal rights? Mediators reviewing confidentiality provisions that may or may not be settled points of law? Ack!

But Oberman is not the first to assert that mediators, as part of the legal system, have a responsibility to share information (not legal advice) with parties prior to and during mediation. Richard Zorza, an advocate for self-represented litigants and access to justice, asserts that mediators may, and at times should, provide information to parties. He interprets our own Model Standards of Conduct, which he says allow us to give information that we are qualified by our training or experience to provide (VI[A][5]). The mediator cannot personally ensure that each party has made a free and informed choice to reach particular decisions (I[A][2]), but Zorza reads the Model Standards to mandate that we do figure out how to make self-determination and a quality process possible, especially when the party does not fully understand what mediation is (VI[A][10]).

While you may not agree with Oberman or Zorza, court-connected mediation programs are facing an important challenge. With the increase in pro se litigants in court and the continued growth of court-connected ADR, how can mediators continue to “conduct a mediation based on the principle of self-determination [in which each party] makes free and informed choices as to process and outcome” (I[A]), especially if confidentiality provisions are not clear?

                        author

Heather Scheiwe Kulp

Heather Scheiwe Kulp is a lecturer on Law at Harvard Law School and a Clinical Instructor at the Harvard Negotiation & Mediation Clinical Program. Prior to joining Harvard Law, Heather was a Skadden Fellow at Resolution Systems Institute/Center for Conflict Resolution in Chicago. While there, she designed court- and government-based conflict… MORE >

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