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:
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.
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