Confidentiality: The Illusion and the Reality— Affirmative Steps for Lawyers and Mediators to Help Safeguard Their Mediation Communications
New York Dispute Resolution Lawyer
Confidentiality is one promise of mediation that is increasingly broken, even though judges, lawyers and mediators frequently extol the sacredness of mediation confidentiality as a primary benefit for considering mediation as a settlement forum. We observe that legal challenges to any aspect of the mediation have caused judges to scrutinize mediation communications in a way that renders mediation confidentiality vulnerable at a minimum and violated at the worst. We are finding it a chronic challenge to decipher the precise and appropriate boundaries of mediation confidentiality. Moreover, we are increasingly discomforted to see that even unsuccessful legal challenges to mediation might compel disclosure of what would otherwise have remained confidential mediation communications.
Reprinted with permission from the New York State Bar Association.