In the world of ADR news, California’s mediation confidentiality provisions are achieving “Kardashian”-like levels of fame at the moment, with a comparable amount of dramatic fireworks to boot. Since 1993, California has included in its Evidence Code provisions which guarantee mediation confidentiality and greatly limit the discovery and admission of evidence procured from mediations. However, between an initiative to rewrite the California Evidence Code and a recent decision in Delaware’s influential Court of Chancery, these protections face a challenge, one that threatens to jeopardize the reliability of mediation as a viable dispute resolution process in the Golden State. (more…)
Posts Tagged ‘confidentiality’
The Indiana Supreme Court recently declared that the state’s judicial policy supports “robust confidentiality” in mediation. In doing so, the court vacated a Court of Appeals ruling that would have expanded the circumstances in which confidentiality could be broken to obtain evidence. The two rulings reflect a strong contrast in interpretations of ADR rules and judicial policy toward mediation. (more…)
A recent decision by the Indiana Court of Appeals shows the uneasy balance between the rules of confidentiality in an ADR process, and the rules of evidence in a court trial. In the family law case Horner v. Carter, the Indiana court has interpreted its state rules of ADR and Evidence so that clients may introduce evidence from confidential ADR sessions for a much broader range of reasons than the court had previously allowed. While the case is limited to Indiana, and currently under appeal to the Indiana Supreme Court, other ADR professionals may wish to tune in for two reasons. First, other states beyond Indiana may follow similar rules. Also, the case is an interesting example of the uneasy balance that can exist between the protection and privilege of ADR, and how that veil may be pierced unexpectedly in a court proceeding. (more…)
Last year, the Delaware Coalition for Open Government sued Delaware’s Chancery Court judges for operating a private arbitration system. Empowered by legislation passed in 2009, the judges were acting as arbitrators in business disputes, which, the Coalition argued, effectively made court proceedings confidential. According to the Coalition, this violated the presumptive right to access to judicial proceedings and documents, as guaranteed by the First Amendment of the Constitution.
Judge Mary McLaughlin from the Eastern District of Pennsylvania agrees. In a 26-page opinion, she rules that the arbitrations are sufficiently like a trial to be covered by the right to access presumption in the First Amendment. In coming to this conclusion, she argues that unlike arbitrators, who are private actors selected by the parties, judges are appointed to public service and therefore must act in the public interest.
In her recent article in The Ohio State Journal on Dispute Resolution (and in previous articles here and a workshop here), Susan Oberman discusses the tension between mediation’s promotion of confidentiality and the constitutional right to privacy. While the article examines extensively the history of privacy, confidentiality, and constitutional/state law, I want to point mediators and court mediation program administrators to an issue of particular relevance for their practice. (more…)