2009 Developments in Mediation: Mediation Confidentiality


by Holly Hayes

Our August post on the “bad faith” mediation section of Texas House Bill 2256 (read more about the bill here) that requires the mediator to report bad faith mediation to the insurance commissioner or the Texas Medical Board, as appropriate, prompted our attention to how other states are addressing confidentiality in mediation.

Texas operates under the Alternate Dispute Resolution Procedures (Chapter 154) of the Civil Practice & Remedies Code which provides in Section 154.053(c) that “[u]nless 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.”

The Uniform Mediation Act (UMA) addresses confidentiality in Section 8 and has been adopted in eleven states: Nebraska in May 2003; Illinois following nearly a month later; with New Jersey, Ohio, Iowa, Idaho, South Dakota, Washington, Utah, the District of Columbia and Vermont more recently. The UMA has been introduced in five states: Nevada, Hawaii, Minnesota, New York, and Rhode Island. Two states rejected the UMA: Connecticut and Indiana. Eight states adopted similar bills: Delaware, Montana, Nevada, Oregon, Wyoming, New Mexico, and Florida.

With respect to Massachusetts, Diane Levin from the Mediation Channel commented that “after reaching impasse in its deliberations, the mediation community here in the Commonwealth has agree to put discussions regarding the UMA on hold for now and will revisit it at a later date”. She gives a thoughtful overview on her blog about the Massachusetts experience as the state considered adoption of the UMA. (read more here)

Diane also referred us to the “comments” made concerning the confidentiality section of the UMA. The UMAstates that mediation communications are confidential to the extent agreed upon by the parties or provided by other law or rule of the state. As stated in the “comment” section by the Drafters of the UMA, expectations regarding the disclosure of mediation communication outside of the proceedings are complicated. Parties expect in most situations that communications during a mediation will not be discussed with others outside the mediation.Parties even may choose mediation to resolve their disputes to assure privacy of their issues and the related communications.

However, those same parties may also expect, with good reason, that they can discuss what occurred during their mediation with family members, spouses and others without the risk of civil liability that might accompany an affirmative statutory duty barring such disclosures. The Drafters of the UMA, at one point, attempted to establish a comprehensive rule that would prohibit such disclosures, but found it impracticable to do so without imposing a severe risk of civil liability on the many unknowing mediation participants who might discuss their mediations with others for any number of reasons. (read more here)

The provision of the privilege of confidentiality in the UMA is intended to promote full disclosure of the issues to the mediator and hopefully ensure a higher level of success for the mediation and greater satisfaction for the participants. Successful mediations are expected to promote greater community confidence in the mediation process resulting in more dispute resolution through mediation.

Finally, Steven Mehta, at Mediation Matters also provided a thoughtful analysis on mediation confidentiality. (read more here) And Karin S. Hobbs’s article, “Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?“ is an excellent discussion on the importance of confidentiality in mediation.

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Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist Universityand a Masters in Health Administration from Duke University. She can be reached at: holly@karlbayer.com.

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