Confidentiality & Privilege

Kristen BlankleyAssistant Professor

@ADR_Prof

Confidentiality vs. Privilege

They are NOT the same thing!

Confidentiality vs. Privilege

Confidential• Applies

everywhere!• Governed by

statute or contract• Generally applies

the same to everyone

Privileged• Applies in Court• Governed by

statute• Applies differently

to different parties

Confidentiality & Privilege

• Why do we want to protect mediation communications?

• What are reasons we may not want to protect some (or all) mediation communications?

Policies in Favor of Protecting Mediation Communications

• Effective mediation requires candor• Fairness to the disputants• Privacy is incentive to choose mediation• Mediator must remain neutral in fact and

in perception• Mediators need protection from

harassment

Policies Against Protecting Mediation Communications

• Need “every person’s evidence”• Prevent misuse of mediation• Protect less powerful parties from

secrecy• Society’s right to know

We will start by talking about Confidentiality . . .

Nebraska Dispute Resolution Act of 1991

25-2914. Confidentiality; exceptions.

Any verbal, written, or electronic communication made in or in connection with matters referred to mediation which relates to the controversy or dispute being mediated and agreements resulting from the mediation, whether made to the mediator, the staff of an approved center, a party, or any other person attending the mediation session, shall be confidential. Mediation proceedings shall be regarded as settlement negotiations, and no admission, representation, or statement made in mediation, not otherwise discoverable or obtainable, shall be admissible as evidence or subject to discovery. A mediator shall not be subject to process requiring the disclosure of any matter discussed during mediation proceedings unless all the parties consent to a waiver. Confidential communications and materials are subject to disclosure when all parties agree in writing to waive confidentiality regarding specific verbal, written, or electronic communications relating to the mediation session or the agreement. This section shall not apply if a party brings an action against the mediator or center, if the communication was made in furtherance of a crime or fraud, or if this section conflicts with other legal requirements.

Confidentiality Can Also Be Addressed in a Contract

Confidentiality Questions

• You have been mediating a long and protracted FGC. You have put more than 40 hours into the case and you have gotten to know one of the participants. You see one of the family members at HyVee. What do you do?

• You are at the hairdresser, and the hairdresser asks you what you do. Can you give tell her stories about mediation cases to better explain what it is that you do?

Question . . . .

Assume the following: In an unsuccessful mediation, mom admits in joint session that she spanks her kids as punishment. Dad travels a lot for work and somehow did not know this.

Dad wants to introduce evidence that mom made this admission in mediation. What happens?

Mediation Privilege

Pursuant to 25-2933(b)(1)

In a proceeding . . .

A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

Mediation Privilege

Pursuant to 25-2933(b)(2)

In a proceeding . . .

A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.

Question . . . .

If dad had seen mom spank the kids, can he introduce that information into evidence in a later court proceeding?

Exceptions to Privilege

Section 25-2933(c):Evidence or information 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 a mediation.

Now assume that although mom claims that she is just “spanking” the kids, dad claims that mom is actually engaged in physical abuse. What do you do?

Question . . . .

Exceptions to Privilege

Under 25-2935(a)(7)• Sought or offered to prove or disprove

abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party.

Under 25-2936(b)(3)• A mediator may disclose:

A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.

Under 43-2939(4) – Parenting Act• Prior to the commencement of mediation, the mediator

shall notify the parties that, if the mediator has reasonable cause to believe that a child has been subjected to child abuse or neglect or if the mediator observes a child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, the mediator is obligated under section 28-711 to report such information to the authorized child abuse and neglect reporting agency and shall report such information unless the information has been previously reported.

• Assume a party to a mediation says that either Ralph Jones or Fred Smith assaulted him. At Fred Smith’s felony trial, he testifies that Fred Smith assaulted him. Smith wants to call mediator to testify as to what witness said during the mediation. Under the UMA, can the mediator be forced to testify?

Under 25-2935(b)(1)

There is no privilege under section 25-2933 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

(1) a court proceeding involving a felony;

You are being sued for mediator malpractice. Can you use statements made in the mediation to defend yourself?

Under 25-2914:

This section shall not apply if a party brings an action against the mediator or center, if the communication was made in furtherance of a crime or fraud, or if this section conflicts with other legal requirements.

Under 25-2915:

No mediator, staff member, or member of a governing board of an approved center may be held liable for civil damages for any statement or decision made in the process of dispute resolution unless such person acted in a manner exhibiting willful or wanton misconduct.

Under 25-2835(a)(5):

sought or offered to prove or disprove a complaint of professional misconduct or malpractice filed against a mediator.

A party to a mediation wants to void an agreement that was signed during the mediation because party claims that mediator put tremendous and undo pressure on her to sign. Under the UMA, can the party testify? Can the mediator be forced to testify?

Under 25-2935(b)(2):

There is no privilege under section 25-2933 if a court, administrative agency, or arbitrator finds, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in:

(2) except as otherwise provided in subsection (c) of this section, a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation.

Under 25-2935(c):

A mediator may not be compelled to provide evidence of a mediation communication referred to in subdivision (a)(6) or (b)(2) of this section.

What if a party who is alleged to have breached a signed mediation agreement claims that settlement was never reached?

Under 25-2935(a)(1)

There is no privilege under section 25-2933 for a mediation communication that is:

(1) in an agreement evidenced by a record signed by the parties to the agreement.

Assume a court ordered parties to mediation and now wants to know whether they showed up and, if so, whether they bargained in good faith even though settlement was not reached. Under the UMA, can the court order the mediator to disclose this information?

Under 25-2936,

(a) Except as required in subsection (b) of this section, a mediator may not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation.

A mediator may disclose:

(1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance;