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…)
Posts Tagged ‘confidentiality’
The Silent Space: Mediation Confidentiality, the Right to Privacy, and the Mediator’s Role
Just Court ADR, July 12th, 2012Part 3 of 3: Foreclosure Mediation Best Practices
Just Court ADR, March 14th, 2012MEDIATION SESSION ELEMENTS
Ensure Mediators are Well-Trained
Some programs, fearing they will not be able to attract people to mediate, lower the requirements for training mediators. Instead of the normal 40 hour mediation training, they may require only 12 hours of training with an additional training in foreclosure law, or only require that the mediator be an attorney. This lack of training jeopardizes the mediation process itself, as people may not have the tools after 12 hours of training to manage such a complicated discussion. Connecticut’s program boasts a high settlement rate, in part because (more…)
Groundbreaking Court Decision Requires Courts to Comply with Mediators
Just Court ADR, July 15th, 2011Court-Ordered Mediation Agreement Must Be Written
Susan M. Yates, July 27th, 2010The Missouri Court of Appeals has issued a decision that is instructive as to what can happen when an agreement reached in a court-ordered mediation is not reduced to writing before everyone leaves the mediation. The decision also highlights the potential tension between an emphasis on good faith participation and confidentiality, although it never discusses good faith.
Missouri’s Supreme Court Rules 17.01(d) and 17.06(c) specifically require that agreements be memorialized. In this situation, one party left the mediation, saying they would return to finalize the agreement, but did not do so for an hour, at which point the other party and the mediator ended the mediation. During the ensuing week, there were follow-up efforts to finalize the agreement, but the party who had left the mediation quibbled with various drafts of the agreement.
The Appellate Court, reversing the trial court, found that the plain language of Supreme Court Rule 17.06 (c), (more…)
