Mediation: ABA Ethics Guidance Boosts Neutrals' Confidentiality-Protection Obligations, But Only Slightly (Web)
November 11, 2008
The Committee on Mediator Ethical Guidance--set up by the ABA Section of Dispute Resolution to provide advisory responses to requests for ethical guidance on the 2005 ABA/American Arbitration Association/Association for Conflict Resolution Model Standards of Conduct for Mediators–has set out a standard for mediators’ obligations to protect confidentiality of mediation communications when ordered by a court to testify about a mediation.
The model standards make the mediator active in protecting mediation confidentiality, but stops short of requiring affirmative steps, such as court orders, to prevent a mediator from providing discovery or testimony.
Opinion SODR-2008-3 (Sept. 23, 2008)(available here), notes that the model standards didn’t require lawyer- or nonlawyer-mediators to take affirmative steps to protect the confidentiality of mediation communications. The model standards don’t indicate whether a mediator must protect mediation communications by, for example, filing a motion for a protective order, resisting a subpoena, or otherwise making clear to the court the extent of the mediator's ethical obligation.
The ABA committee's opinions on mediation confidentiality--SODR 2007-1, SODR 2008-1 and SODR-2008-2, which are available here--deal with situations in which a lawyer-mediator recognized a risk that a court might order mediation communications disclosed.
But those opinions didn’t discuss the mediator’s obligation to take affirmative steps toward protecting confidentiality.
The earlier opinions noted an ethical obligation by attorney-mediators to protect mediation confidentiality. The model standards, however, made no distinctions between an attorney-mediator and a nonlawyer mediator. Therefore, all mediators have an ethical obligation to protect mediation confidentiality.
The model standards, the opinion points out, limit the information that mediators should reveal. When required, the mediator may report whether parties appeared, and whether a settlement was reached.
The committee view's is that a mediator should “strive” to maintain confidentiality as to all of the matters in the mediation. This conduct will depend on the mediator’s resources and legal experience. At least, a mediator should inform the court or the party seeking the confidential information about the mediator's ethical requirements under the model standards as well as any applicable statutes, rules, or contracts that protect the confidentiality of the mediation communications.
The committee interpreted the model standards “to leave to the mediator's discretion and best judgment further and more formal resistance” of a court order that may affect the mediator’s confidentiality.