“Mediation is confidential.” Many mediations, if not all, begin with this sentence. It is widely practiced for the parties, mediator, and attorneys to sign a confidentiality agreement before mediation commences. If one is not careful to read the fine print, he or she will not notice that this “confidentiality” is often very limited. For example, it usually will not apply to telling the media all the details of the mediation, or talking to one’s friends about the mediation. What is worse, parties are often told that California law holds mediation to be “confidential,” and that all communications in the mediation room cannot be used against them later in court. Unless the mediator is clear in their explanation, the party will not know this applies only to “subsequent civil cases.” In reality, then, and contrary to what I have heard some mediators say to parties, confidentiality can be very narrow. Although important, most mediators don’t explain that this (and much else) may be expanded by agreement of the parties.
A related subset of this is the question, “Is it ethical to discuss what happens in a mediation once it is finished? Is it ethical to publish stories about what happens in a mediation?” This article explores this issue, and focuses on whether publishing what occurs in the mediation room is appropriate for an attorney or a mediator, separately below.
The world of attorney-client communication is widely held to be completely sacrosanct. Per California Rule of Professional Conduct 3.100, attorneys are prohibited from disclosing confidential client information, except in rare circumstances to protect third parties from crimes or where the client acquiesces to the disclosure. But what does this mean? Does it apply to discussing a mediation attended with a client, or only what the attorney and client discussed at the mediation? Further, if names are changed, but facts are the same, are the rules complied with? A great source of learning material for mediators may be found in attorneys’ stories of what was effective or not effective in a mediation, but who can discuss and/or publish this?
California Rule of Professional Conduct (CRPC) 3.100 states, “A member [(e.g. attorney)] may not reveal [confidential client] information … without the informed consent of the client.” A strict reading of this rule seems to clearly indicate discussing the details of a case that was mediated would be a violation. CRPC 3.100 refers to Cal. Bus. And Prof. Code 6068, which states it is an attorney’s obligation “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” This is a heavy burden, and telling one’s buddies about a client’s mediation is arguably a violation, as would publishing the story of the mediation.
But what about mediators? Interestingly, in most states, including California, there is no code of ethics, or any regulation at all for that matter, for mediators (unless they are “court appointed,” which group is not addressed here). So, unlike a lawyer, a mediator can discuss whatever he or she wishes. But is this ethical, even absent rules saying “yea” or “nay”?
This article concludes this is most appropriately determined on a case-by-case basis. For example, if the mediator has a blog and blogs about a recent case mediated, and does not change anything more than the names, and the parties or attorneys to that mediation read the blog, then what? In particular, what if this blog is completely transparent and discloses the parties’ bottom lines? Or even worse, the mediator only knows one side’s bottom line, which is then included in the blog? Is this ethical?
If the case does not settle, and is ongoing, it would seem clearly unethical to disclose the parties’ bottom lines. This conclusion is reached because such disclosure gives each side “too much” information. It discloses to the other side, and the world at large, what the mediator likely learned in a private caucus pursuant to a discussion with the mediator. The context of caucus is usually such that most parties would not anticipate the details of that conversation would end up in a book or on a website. If the case has not yet settled, it shows one side’s hand to the other, or puts all the cards on the table, as the case may be. Either way, it greatly impacts the negotiating parties’ stances and potential outcomes.
On the other hand, if the case has resolved, and the story is published a year later, is this ok? Similar to the above, if the parties read this and recognize it as their case, and see that the other side was willing to accept a lesser or greater amount than was paid or received, the parties are likely to feel “cheated.” Interestingly, most never really know what the other side to a negotiation would really be willing to pay or accept—they just make calculated guesses, and gestures, and quit when both sides feel there is no further money on the table. If this is later contradicted with the real facts as they were, the party’s sense of satisfaction is likely to be diminished, simply based on this knowledge and irrespective of the number they settled for.
But what if the mediator changes the story so that not even the parties to the mediation recognizes it as their mediation? There would seem to be no problem with this, although doing so would seem to impede the purpose of publishing the story in the first place, as the actual factual details are what makes the story unique, and what provides the learning points for mediators reading the story later.
Aside from the ethical discussion, this disclosure of what occurs in the mediation room has essentially devastating consequences for the mediator’s business. One mis-step in this regard may spread significant distrust among the legal community familiar with that mediator. For example, if I am a party to a mediation, and the mediator crosses me by disclosing something I told him in confidence regarding my motives or willingness to settle, I will not be inclined to use that mediator again or to recommend him. Instead, I would caution anyone who mentions him to avoid him and go with someone else.
Finally, just as permitted by CRPC 3.100, it seems a mediator should have no reservation about publishing a story, or telling friends about it, if the parties knowingly consent to such disclosure.
In closing, this seems to be a situation where ethics, and publishing decisions, should be made on a case-by-case, mediator by mediator, attorney by attorney, and even party by party, basis. How much detail is appropriate will also fluctuate depending on the facts. At any rate, there is clearly no clear answer, and the best advice is probably just to remain alert to the issue.