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Mediation

November 5, 2018

There is an ambiguous relationship between the authority judges wield and the lip service they pay to promoting the use of alternative dispute resolution (ADR) processes. This ambiguity is potentially fatal to the ADR process and does damage to its credibility and desirability under certain circumstances. A central question is whether mediators should have immunity from being summoned to testify in court regarding the ADR proceedings. A failed or appealed ADR process has major implications for the discovery process, the way a judge will view the parties, and the outcome of a trial or settlement.

When a mediation fails and the parties proceed to trial, or a settled ADR process is later appealed in court, how much of the content of the ADR attempt should be known to the trial judge? The dilemma: in order to have the information necessary to work justice, a judge must invade the ADR process, potentially destroying confidentiality in mediations. Even if the inquiry is characterized as merely procedural, the judge must gain enough insight to render judgment. Parties, especially sophisticated ones that foresee a day in court, might use the differences in procedure between ADR and trial to gain an unfair advantage. At the least, the finality ADR processes are supposed to deliver is highly dubious when courts have the power to open the proceedings and begin second-guessing parties and neutrals.

The prevailing view appears to be that some degree of confidentiality is good for mediation, but there is no consensus on how strong that protection should be. Confidentiality in mediation is crucial for many reasons:

  • Effective mediation requires candor:
    Parties need to be able to open up in mediation and not fear their participation will hurt them later.
  • Fairness to disputants requires confidentiality:
    Mediation lacks hallmark safeguards of trial (counsel, rules of evidence & procedure). The danger here is that further use of information from the proceedings in subsequent trial proceedings could be prejudicial, especially if one party is more sophisticated than the other. Mediation could be used as a discovery device against legally naïve people if the mediation communications were not inadmissible in subsequent judicial actions. There are major implications here for criminal defendants who are required to participate in ADR by a court.
  • Mediator must remain neutral in fact and perception:
    The danger is that courtroom testimony by a mediator will inevitably be characterized to favor one side or the other. This places mediators in an ugly position, and likely destroys the confidence of the parties in the ADR process.
  • Privacy is an incentive for many who choose mediation:
    What is the use of touting confidentiality as a virtue of mediation if the protection is vulnerable? It seems misleading to lure parties to ADR with promises of confidentiality, only to have the privilege so tenable it can be destroyed at the behest of a trial judge.
  • Mediators and mediation programs need protection against distraction and harassment:
    Frequent demands by judges for testimony will destroy the efficiency of mediation and likely have a chilling effect on those who desire to act as mediators.

Notwithstanding the infrequency of court investigation into mediation processes and destruction of mediation confidentiality, the ambiguity and uncertainty of mediation confidentiality renders mediation fragile, potentially dangerous to parties, and subordinate to the court system.


Attorney Jacobs believes that everyone deserves a lawyer and always strives to achieve the best available legal outcomes for his clients. Attorney Jacobs cannot make promises as to what legal outcome he will be able to achieve for his clients; however, Attorney Jacobs can promise you that the care and concern he will show for you and your legal needs will be second to none. If you sustained a personal injury, the law firm of Daniel L. Jacobs Jr. LLC and Attorney Jacobs are here to assist you.


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AUTHOR:
Nathan Pluto
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