Ethics in ADR

Confidentiality is the ‘Heart’ of Mediation

In almost every ADR session, the neutral informs the disputants that the session is confidential, and they can speak frankly.  While this is usually true, there are important limitations that ADR consumers may not be aware of.  Before you disclose the next sensitive trade secret or embarrassing personal fact, read this article.

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Fairness & Neutrality in Mediation

Understanding fairness and neutrality is central to success in mediation and negotiation, whether you’re an ADR provider or someone involved in a dispute. That’s because we all have a real need for fairness.  We will even reject “free money” if feel we are being unfairly treated as we get it. This article examines the science behind this startling behavior, as well as what it means to be “fair.” Finally, the article explores the neutral’s role in ensuring fairness.

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Emotional Intelligence & Managing Emotions

Dramatic social shifts occur periodically. One is taking place now. The Harvard Business School refers to it as “(o)ne of the most influential business ideas of the decade.” The following quote appeared in the July, 2005, American Bar Association Journal: “Research over the last decade has conclusively demonstrated that emotional intelligence predicts success more than any other single factor ….”

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Confidentiality – A Guide for Mediators


The innovation lab builds bridges between theory and practice … In this case, the group of mediators were examining confidentiality, looking at their experiences and building a comprehensive guide to the significance of confidentiality in mediation, its legal framework and understanding how to use confidentiality most effectively.

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Dan Ariely: Our buggy moral code

Behavioral economist Dan Ariely studies the bugs in our moral code: the hidden reasons we think it’s OK to cheat or steal (sometimes). Clever studies help make his point that we’re predictably irrational — and can be influenced in ways we can’t grasp.

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Rising Above the Rest

When the sequoia seeds fall to the ground it will spend the first 200-500 years growing upwards in an effort to avoid competition and to reach the canopy for maximum sunlight … As humans, we don’t have the luxury of spending hundreds of years forming our framework or foundation. In the short life we have to live, we must make our choices with integrity. To rise above the rest, we must be ethical and take the high road.
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Confidentiality Exceptions

Last year the California Supreme Court upheld California’s expansive protection for mediation confidentiality to bar evidence of attorney-client communications made during mediation in support of potential malpractice claims against attorneys. In doing so, however, the court practically begged the legislature to consider amending the statute to allow the use of such evidence. A bill has now been introduced in the legislature to do just that.

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Mediation Confidentiality: Revisited

Several weeks ago, I posted a blog about California Assembly bill AB 2025 which would abolish mediation confidentiality in very limited circumstances; namely, in  actions “…for legal malpractice, an action for breach of fiduciary duty, or both, or in a State Bar disciplinary action…” communications directly between the client and her attorney during mediation would be admissible where the professional negligence or misconduct is  the basis of the action or proceeding.

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Paul Zak: Trust, Morality — and Oxytocin

What drives our desire to behave morally? Neuroeconomist Paul Zak shows why he believes oxytocin (he calls it “the moral molecule”) is responsible for trust, empathy and other feelings that help build a stable society.

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Trust as a Function of Authority and Rapport in Mediation

Whenever I go to the doctor’s office I hope that I can trust what he or she tells me about my health. … Don’t we all? I mean, unless I’m going to spend the time and money to go out and get myself an M.D., I am forever going to rely on the expertise of medical professionals to tell me whether my “’X’ levels are too high,” my “’Y’ rates are low,” etc. And I’ll take my doctor’s word for it. … Because I have to. I respect the authority of their education and experience in areas where I know I have little.

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The Truth About Deception In Mediation

Now that the court system has institutionalized the use of mediation in virtually all civil proceedings, trial lawyers are paying closer attention to their negotiation skills. While those skills involve less structured behavior than presenting a case to a jury, they nonetheless involve one common strategy that even the most skilled practitioners refuse to acknowledge: deception.

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Confidentiality in Mediation

“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.

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