Kathleen M. Scanlon, who wrote this article as an “ADR Counsel In Box,” a series of Alternatives centerfold pullout supplements, is a former CPR senior vice president who is special counsel to New York’s Heller Ehrman White & McAuliffe. She wrote the “Drafter’s Deskbook: Dispute Resolution Clauses,” published by the CPR Institute; the book’s 2003 supplement updates the confidentiality issues discussed in this article.
Confidentiality is a powerful aspect of mediation because it allows the parties and mediator to frankly discuss facts, issues and possible settlement options. The objective of mediation confidentiality is to protect communications from being disclosed outside the process. It also seeks to protect communications from being disclosed within the process when sensitive information has been provided to the mediator in caucus. Both of these elements of confidentiality are required to ensure the frank discussions that mediation intends.
Checklist Items for Guarding Against
Disclosure Outside the Process
Mediation confidentiality is unevenly regulated and relies on a mixture of legal and practical protections. The principal checkpoints are:
• Mediation Statutes
• Rules of Evidence & Related Caselaw
• Court-Annexed Mediation Rules
• Mediator Ethical Codes/Guidelines
• Private Mediation Rules and Separate Confidentiality Agreements