There is a high chance that mediation will not successful if the parties are not honest about everything. This honesty can only come forth if everyone is assured that everything said at mediation will remain confidential. A confidentiality agreement allows parties to be more open and honest. In fact, clients will even feel comfortable enough to talk about emails, text messages, or phone calls. Full disclosure to the mediator can definitely help mediation become more successful.
Aside from the lack of mediation confidentiality, mediation can also be unsuccessful if one side believes there was never a true meeting of the minds or a true agreement reached on material terms. This occurred in the case of Facebook v. Pacific Northwest Software. There are times when both parties are unhappy with mediation or the result of mediation. Attorney malpractice or something wrong being done by the mediator are some of the causes of dissatisfaction. The CA Supreme Court has prohibited the discovery of mediation communications to prove attorney malpractice. When there are multiple parties participating in mediation and not all of them are included in the settlement, the non-settling parties may attempt to seek discovery of mediation communications to resolve the remaining issues. While these communications are currently protected because of the CA Supreme Court’s previous ruling in Cassel, the legislature may make some exceptions to this law in the near future.
In order to keep parties satisfied and “in the loop” on all agreements being made, it is recommended that any resolution reached during the process be written down so that it clearly shows that a party agreed to a specific resolution. It would also be helpful to include information on whether or not the resolution is enforceable or binding. All of the laws and regulations regarding mediation confidentiality discussed here are specifically for California. The laws of another jurisdiction may vary. There are talks of establishing a Federal common law privilege governing mediation confidentiality. However, California courts are split on whether we are ready to adopt a Federal privilege. Therefore, all mediation confidentiality agreements should be written considering the applicable statutory provisions, case law, or court rules.
We hope this article has helped everyone realize the importance of a mediation confidentiality agreement. Here are some tips for mediator’s to remember when it comes to confidentiality agreements:
- Always enter into a mediation confidentiality agreement at the beginning of the mediation process. Be sure all parties understand and consent to the agreement. Attorneys and mediators can help clients understand the implications of the agreement.
- Whenever the parties enter into an agreement, be sure to include something similar to the following case: “This agreement shall be 1) binding upon the parties and enforceable, including without limitation, pursuant to Section 664.6 of the California Code of Civil Procedure and 2) admissible pursuant to Section 1123 of the California Evidence Code in a proceeding in any court of law or arbitration for purposes of enforcement of this agreement.”
- Be sure all parties include the degree of mediation confidentiality they desire in a stipulated protective order .
Source: California Lawyer