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.
Ethics in ADR
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.
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 ….”
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.
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.
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.
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.
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.
“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.