Dealing with confidentiality, neutrality and other sensitive issues

Conference on 'Mediation and IP – Bringing Stakeholders Together'

Alicante, May 29 - 30, 2014

Michele Weil-Guthmann

OUTLINE I. Barriers to mediation and the need for an ethical process II: Confidentiality need and dilemma Alternatives for confidentiality rules Exceptions Difficulties Practical solutions II . How do mediators address other issues of fairness in the

processes they manage? Independence Impartiality Neutrality III. Other sensitive issues

THE BARRIERS TO MEDIATION

Many judges/lawyers consider role of Justice is to resolve disputes by application of law with a winner and a loser – lack of negotiation culture

Mediation in civil and commercial matters still used in less than 1% of cases in EU

Mediation may still be regarded as poor alternative to judicial proceedings and offering less guarantees

To overcome resistance and get most out of mediation, stakeholders must be guaranteed an ethical process

AN ETHICAL PROCESS

2008 EU directive and codes of conduct principles for an ethical process :

Fairness of process confidentiality

Mediators’ attitude independence, impartiality and neutrality

CONFIDENTIALITY OF MEDIATION : A NEED

• Confidentiality needed to allow necessary

mutual trust and overcome reluctance to share information necessary to a successful process.

• Parties need be ensured that anything said in the course of a mediation may not be used against them in subsequent proceedings.

CONFIDENTIALITY : AN ASSET FOR BUSSINESS MEDIATION

Mediation offers a secure, protective private space : No disclosing of trade secrets, e.g. details of

strategies, financial needs, production capacity, supply, margins, research budget and development…

In IT disputes No risk of weakening an invention No negative impact on the image and reputation of

companies

THE EU DIRECTIVE REQUIREMENT

• Unless the parties agree otherwise, neither mediators nor those involved in the mediation process may be compelled to give evidence in judicial proceedings regarding information arising from mediation process except:

for overriding considerations of public policy, particularly to protect the physical integrity of a person, etc.

where disclosure of content of mediation agreement is necessary in order to implement or enforce that agreement

• Member States may enact stricter measures to protect confidentiality and different rules for domestic disputes

ALTERNATIVES FOR CONFIDENTIALITY RULES

Dilemma: too broad a protection may lead to an unethical process, too restricted an approach may

undermine mediation concept • To whom the obligation of confidentiality? What

scope? • Desirable exceptions ? Which difficulties do they

raise? • Should mediators have right to testify or refuse to

testify in court? • How to enforce confidentiality principle?

TO WHOM DUTY OF CONFIDENTIALITY SHOULD EXTEND?

Depending on country and its law To all persons participating (mediator,

parties, representatives, witnesses and experts) To mediator and services providers of

mediation only All persons designated in a specific

agreement?

SCOPE FOR CONFIDENTIALITY

The fact that a mediation is taking place? An invitation to engage in a mediation process or the fact that someone is willing to participate in it ?

All information views, suggestions ... expressed in mediation ?

Documents drawn up solely for purposes of mediation, or any document presented during mediation process, or those which were not otherwise available ? (How to ensure that mediation is not abused?)

EXCEPTIONS FOR OVERRIDING CONSIDERATIONS OF PUBLIC POLICY

Best interests of children or to prevent harm to the

physical or psychological integrity of a person But also depending of the country e.g. An order by a criminal court A criminal process or illegal activities Imperative public order issues or protection of public

order Duress or fraud Interests of justice or public interest

THE SCOPE OF EXCEPTION FOR CONSIDERATIONS OF PUBLIC POLICY

Law may require parties or mediator to reveal

certain facts; But there are also cases where duty of confidentiality is waived, but no obligation to disclose information

Notions of public policy, public order, public interest may be subject to interpretation

In some case, duty to disclose may be arguable

SCOPE OF EXCEPTION LINKED TO THE IMPLEMENTATION OR ENFORCEMENT OF THE AGREEMENT RESULTING FROM THE MEDIATION

• Which agreement may be disclosed: verbal or

written? • Should exception apply to the agreement

itself or to any information, facts or document arising from the mediation which may be necessary to establish the fact? How may this exception affect the impartiality of the mediator?

MEDIATOR’S RIGHT TO TESTIFY OR REFUSE TO TESTIFY IN COURT

Depending on the law the Mediator may : be exempt from obligation to give evidence in court

proceedings, subject to exceptions provided by law be compelled to testify in court on the facts covered by the

exceptions, whatever parties have agreed, be prevented to testify about information obtained in

mediation, whatever the information is, including in criminal proceedings

only if accredited, be exempted from the obligation to provide information revealed in the mediation process

may have to testify in court without limitation according to what parties have agreed

MEASURES TO SECURE CONFIDENTIALITY

An assessment of applicable law An agreement for : A confidentiality obligation for all persons involved

and for any information obtained in mediation, unless there is legal obligation to do so, or consent Prohibition for the mediator to be a witness, expert…

unless expressly agreed upon No confidentiality for documents that can be obtained

from other sources Exchange of documents through lawyers only No recording or transcript of the mediation; return or

OTHER PRACTICAL MEASURES TO SECURE A FAIR PROCESS

A clear rule that no agreement is reached until a

formal and final agreement has been signed Termination of mediation by mediator in case of

unethical processes Responsibly for parties /mediators to ensure that

their colleagues, representatives /advisors are bound by confidentiality agreement.

OTHER ISSUES OF FAIRNESS IN THE MEDIATION PROCESS LINKED TO THE ATTITUDE OF THE MEDIATOR

• Independence • Impartiality • Neutrality

INDEPENDENCE

Obligation of disclosure of any circumstance that may,

or may be seen to, affect mediator's independence e.g. any personal or business relationship with one or more

of the parties; any financial or other interest, in the outcome of the mediation; the mediator, or a member

of his firm, having acted in any capacity other than mediator for one or more of the parties.

IMPARTIALITY :

• Commitment to serve all parties equally with respect to the process of mediation

• No judgment • No bias towards one of the parties.

NEUTRALITY

• Lack of interest in outcome of dispute (fees, new mandates)

• No intervention in the substance of the dispute (May an interventionist approach threatens neutrality? )

• Coping with mediator’s own ethical, cultural, political, religious values; Fairness, justice, equality. In case of perceived of real non-sustainable nature, or iniquity of the agreement, or the illegality of the terms of the agreement? Is ending mediation process a solution?

STILL PENDING ISSUES TO SECURE THE QUALITY OF THE PROCESS

How to improve the quality of mediation :

mandatory training for mediators, lawyers and judges?

Should we have independent or state accreditation systems?

CONCLUSION

• A recent study* shows that the low level development of mediation would result from weak pro-mediation policies, in almost all of the EU Member States

• At the same time, we witness decrease in budgets of judicial systems and a search for « a balanced relationship target number between civil litigation and mediation”

• Pressure is made on litigants not to pursue unnecessary proceedings and waste state resources

• The future belongs therefore to mediation if we find the path for an efficient and faultless process.

*Rebooting’ the mediation directive: assessing the limited impact of its implementation and proposing measures to increase the number of mediations in the EU. directorate general for internal policies