The Master Mediator, Fifth Installment, Asymmetry, Confidentiality and Cooperation (Web)

This is the fifth installment of The Master Mediator, a periodic CPR web column featuring commentary by Robert A. Creo, describing and discussing mediation room techniques and practice issues.

Earlier Master Mediator Web site columns discussed practices from the standpoint of the many diverse human responses to evaluating, solving and resolving legal problems. The inherent tensions that  arise when “the rigors of reason and insight and perception” come into play produces asymmetry between the parties, the advocates, the neutral, and the process itself, in every mediation case.

The theses and rationales for why mediation operates like it does include:

A. Mediation is an asymmetrical process intended to function as alternative and flexible dispute resolution method.

B. Mediation is a complex, nonlinear system that is both reactive and adaptive. This is sometimes framed as "complexity theory" or "chaos" theory. Akin to Werner Heisenberg’s principle that the act of observation itself changes the system, the mere act of intervention itself transforms the nature of the conflict and its dynamics regardless of the outcome.

C. Attempts to build a consensus definition of mediation or portray it by grids, schemes or other integrated methods are not helpful and are counterproductive when they empower an orthodoxy of mediation practice.

D. Attempting to create a balanced and predictable process based by grafting due process and other procedural notions from an adjudicatory system onto mediation distorts the inherent asymmetrical nature of the process.

E. Mediation does, or should, fit a classical definition of "argumentation.” For example,
argumentation is an interaction in which participants maintain what they think are mutually exclusive positions, and that they seek to resolve their disagreement, according to Prof. David Zarefsky, of Northwestern University in Evanston, Ill.

Asymmetry, Confidentiality and Cooperation

Confidentiality is the legal platform for permission to be flexible during mediation. The dominant model for resolving civil litigation cases involves a series of private meetings with mediation participants.

Confidentiality allows this to happen.

Confidentiality protections afforded mediation should be expanded and guarded zealously.

Complex legislative schemes, such as the Uniform Mediation Act, aren’t an appropriate way to support and promote mediation and other nonadjudicatory methods of resolving disputes.

Prof. L. Randolph Lowry, who is director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law, in Malibu, Calif., tells a story in his mediation training about the evolution of ATM banking machines. When the machines first became available, each bank had its own machine that would not accept other banks’ cards. The banks competed by increasing the number of locations and advertising them to customers.

The banks then realized that by allowing customers to cross-bank--and charge a small fee for each transaction--they would all be best served. This win-win solution is based upon cooperation but was born of competition. Now, I can go anywhere in the world and place my PNC Bank card in a foreign bank and obtain local currency.

I do numerous medical malpractice claims that arise from poor records or communication of medical histories. Finally, medical records are being digitalized and placed on person cards or chips. This is wonderful. I hope in a few years each of us will carry our medical histories, and our family’s history, with us at all times, in a universally readable format. This is one place where privacy concerns should not trump the available technology.

I also see a trend in some courts to resist the confidentiality of settlement amounts and terms. I am opposed on a practical matter, because defendants strongly believe that this enables them to manage their book of business. We know that no two cases or situations are identical. We know that many dynamics drive a particular settlement figure on any given day. A catalog of settlements, without a detailed case history of the matter and all the personalities involved, is of dubious benefit to the public.
 
So, there is always a tension between confidentiality, privacy and the public interest. This may be a trend that in a manner that affects our work as mediators.

by Robert A. Creo
The author, a Pittsburgh attorney, is a mediator and arbitrator. He also represents parties in alternative dispute resolution and designs conflict resolution systems. He is a founding member of the International Academy of Mediators (see www.iamed.org), and served as its president between 1997 and 1999. He can be reached at robertacreo@cs.com. This column features material that the author prepared for the Mediation and Arbitration Professional Systems Inc. Advanced Mediator Training session in New Orleans in April, and material he incorporated into a keynote speech at the September 2005, meeting of the Michigan State Bar Association ADR Section, as well as an October 2005, speech, at the Minnesota State Bar Association ADR Institute.