I’m doing something different this month. Instead of summarizing empirical research or an evaluation, I’m discussing an article that presents an argument for mediators to be more transparent about the mediations they conduct and calls for a new standard for compulsory mediation that is mandated by the court or required by a contract of adhesion (e.g., a consumer or employment contract). The article is the start of a conversation, with many questions to be addressed, such as what exactly constitutes measured transparency, and how confidentiality and transparency can be balanced.
In her article, “Dispute Resolution Neutrals’ Obligation to Support Measured Transparency” (Oklahoma Law Review, Vol. 71, No. 3, 2019), Nancy Welsh argues that transparency is needed regarding the use and outcomes of dispute resolution processes in order to protect the public and the integrity of the processes. Further, according to Welsh, the neutrals themselves have an ethical responsibility to support that transparency. This is particularly true when parties don’t have a choice (or their choice is limited) but to participate in these processes.
Since Welsh focuses on mediators in her article, I will as well. First, though, let’s talk about what Welsh means by transparency. Although Welsh doesn’t state exactly what she means by the term, it appears from her examples that transparency is the provision of enough information about the use and outcomes of a process that the public can have confidence in that process and parties can make informed decisions. The information provided should also allow for empirical research and systematic analysis to be done, which can point to best practices and enlighten the public as to the effectiveness of the process.
To illustrate what this information might be, she points to the data released by the Nevada Supreme Court regarding the compliance of lenders with the foreclosure mediation program’s statutory requirements. She also highlights the opportunity that the RSI/ABA Model Mediation Surveys pose for gathering standardized participant feedback and mediator reporting.
Noting that the courts and arbitration organizations publish more information about the cases they hear than is generally available for mediation, Welsh points to reasons mediators should be more transparent. First, as with arbitration, parties are often compelled to mediate, from mandatory mediation in the courts to contracts of adhesion that include a mediation requirement. When processes are imposed upon parties, there is a greater responsibility to ensure that the processes are fair and effective, particularly when there is limited judicial review of the outcome, as with mediated settlements. Transparency helps to ensure that, according to Welsh: More information about mediations can help to equalize the knowledge of one-shot users and repeat players, allow for public oversight, and make it less likely that mediators would engage in unethical behaviors. It would, therefore, provide potential users with greater confidence in the usefulness and integrity of the process.
For these reasons, Welsh argues that a new set of standards for compelled mediations is the best option. Because these mediations are the ones that are most in need of transparency, a set of standards specific to them is warranted. As Welsh notes, a customized standard “would acknowledge that mediation occurring pursuant to mandates by courts, legislatures, or contracts of adhesion is different, and that its circumstances require a heightened level of public accountability.”
This article highlights a trend that is coming to the fore in other areas of dispute resolution. As dispute resolution processes, in particular arbitration, have become not only more routine but also more often required, calls for – and requirements for – transparency have followed. Welsh notes that confidentiality has become the hallmark of mediation. For the sake of self-determination and process integrity, she argues that the veil of confidentiality needs to be pierced, in a measured way, to make more information available to users, researchers and courts.