Confidentiality
and Privilege in the Mediation Rules
By: Sam Wampler and David S. Riddle, P.E.
Reprinted from July 2006 ohioconstructionlaw.com
One great advantage of mediating disputes is the confidential nature of mediation—especially in contrast to litigation, which is public.
How can rules for mediation help assure that confidentiality? Last month, we examined the Construction Industry Rules and Mediation
Procedures of the American Arbitration Association (known as “AAA” or “Triple A”). This month, we will continue that examination,
focusing on the rules that relate to confidentiality.
The confidential nature of the mediation process is what enables it to succeed as the favored process for resolving construction disputes. Without the necessary protections in place to safeguard the confidential nature of mediation, its chances of success would be greatly diminished. So let’s take a look at a rule from the AAA governing confidentiality and its interplay and relationship with the recently adopted Uniform Mediation Act. (The Uniform Mediation Act was adopted by the General Assembly, became effective October 29, 2005, and is commonly referred to as the “UMA.”)
Two concepts in the law are involved in this interplay and relationship between the AAA rules and the UMA: “confidentiality” and “privilege.” Confidentiality describes the nature of the information provided during the mediation, whereas privilege describes how the information is treated following the mediation in the course of an adjudicatory process, such as litigation in the courts. Confidentiality is the process of keeping information from parties who were not present when the information was discussed. Privilege, on the other hand, gives us the ability to keep information from being introduced as evidence in a judicial or other proceeding.
AAA Rule M-12 is titled Confidentiality, but it also addresses what is arguably a mediation privilege. M-12 says this:
Confidential information disclosed to a mediator by the parties or witnesses in the course of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by the mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum.
The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce in evidence in any arbitral, judicial, or other proceeding:
views expressed or suggestions made by another party with respect to a possible settlement of the dispute;
admissions made by another party in the course of the mediation proceedings;
proposals made or views expressed by the mediator; or
the fact that another party had or had not indicated a willingness to accept a proposal made by the mediator.
The rule establishes confidentiality guidelines for both the parties and the mediator. Each appears to be under a general duty to keep all communication confidential. However, the respective duties for each are very different. The restrictions on the parties are limited to four areas, while the restrictions on the mediator appear nearly absolute. Of course, these restrictions also protect the parties—and particularly the mediator—from having to testify about statements made in a mediation.
Under the AAA Rules, the right of each is a contractual right, not a right grounded in the law. Therefore it is likely that, unless a statute addresses the issue, the courts would balance the need for the introduction of the evidence in a particular case with the need to preserve the expectations of the parties to the mediation, given their contractual rights and the rules they adopted for their mediation process.
Rule M-12 has no exceptions as to what may be admissible in a later proceeding. Disclosure of a settlement agreement between the parties, whether oral or written, appears to be permissible.
The rule is also silent on the treatment of non-parties present during the mediation. If complete confidentiality is important to the parties, a separate agreement addressing everyone present at the mediation should be considered, although as we shall see, the UMA does address this issue to some extent.
Arguably, Rule M-12 raises more questions than it answers. Does the rule cover only communication that occurs during the actual mediation? If the dispute involves litigation, may the mediator reveal any information to the court? What if one party or both of the parties want to disclose a mediation communication? What if the mediation communication reveals planning for a future criminal act?
Fortunately, in Ohio, many of these gaps are now addressed by statute. The UMA (Chapter 2710 of the Ohio Revised Code) protects mediation
communications from being introduced as evidence in a later proceeding. The UMA also provides for a broad definition of a “mediation communication,”
which addresses the question of when the privilege applies. The definition covers the timing issue: "Mediation communication" means a statement, whether
oral, in a record, verbal or nonverbal, that occurs during a mediation or is made for purposes of considering,
conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
The UMA differentiates between the protection provided for confidentiality and that for privileges. Under the UMA, a mediation
communication is confidential to the extent agreed by the parties (except as provided for in Public Records “Sunshine” laws, such as Ohio R.C. § 149.43).
However, the UMA prohibits the mediator from making a “report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, department, agency, or officer of this state or its political subdivisions that may make a ruling on the dispute that is the subject of the mediation.” The UMA does provide some exceptions to this prohibition. The mediator may disclose some information about the status of mediation, such as whether a mediation occurred or has terminated.
The UMA privilege may be invoked to prevent disclosure of mediation communications in discovery or as evidence in legal proceedings. Mediation communications include statements made before, during, and—to some extent—after the mediation session, if they are made for purposes connected with the mediation. The UMA establishes a privilege for three categories of parties: the mediation parties, the mediator, and non-parties.
A “mediation party” is a person whose agreement is necessary to resolve the dispute and who attends the mediation session. A mediation party may refuse to disclose and may prevent any other person from disclosing a mediation communication.
A mediator may refuse to disclose any mediation communication. A mediator may also prevent others from disclosing communication made by the mediator.
A non-party is a person, other than a party or mediator, who participates in a mediation. Each non-party may refuse to disclose and may prevent any other person from disclosing mediation communications made by the non-party participant.
However, a party may not protect information from discovery or admissibility just by using it in mediation. Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in the course of a mediation.
There are five notable exceptions to the mediation privilege:
public records and meetings,
threats and crimes,
professional misconduct,
child and adult protection, and
agreements reached in mediation.
Arguably the most important of these exceptions is for an agreement reached in mediation. In order to qualify for this exception, the agreement must be evidenced by a record signed by all the parties to the agreement. The reason for this exception is the need to enforce the agreement. Oral agreements remain privileged unless and until memorialized by a record. Were the agreement itself privileged, a party could not enforce it in the event of a breach of the agreement, as the agreement itself could not be introduced as evidence.
So, as you can see, where the AAA Rules leave off, the UMA picks up the slack and provides the law necessary to protect the process, giving the mediation an opportunity to succeed. In future columns, we will continue our discussion of procedural rules frequently encountered in ADR proceedings, but perhaps overlooked or misunderstood by some or all of the parties.
