| ADReport |
Alternative
Dispute Resolution Section Newsletter |
| Volume Two, Number
One |
Honorable
Melanie A. Vaughn, Chair
Mary Louise Preis, Editor
Jonathan S. Rosenthal, Co-Editor |
Have You Heard...?
CONFIDENTIALITY RULES AND STATUTES . . .
One of the benefits to parties
going through mediation is the knowledge and expectation that all of the
communications made during the mediation process will be kept confidential and
will not be used against them in future proceedings. This theoretically allows
the mediation participants to be very candid during the mediation process.
Effective January 1, 2002,
Maryland has a new mediation confidentiality rule. Rule 17-109 was adopted by
the Court of Appeals on November 1, 2001. The rule was adopted as it was
originally recommended by the Standing Committee on Rules of Practice and
Procedure. Although the rule is applicable only to mediations in Circuit Court
proceedings, one might argue that it could be a model for mediators statewide.
The language used in this new
Maryland rule is somewhat stronger than the Uniform Mediation Act (UMA). The UMA
can be found on the internet at www.pon.harvard.edu/guests/uma.
The UMA confidentiality language carves exceptions to mediation privilege for
communication that is: "a threat or statement of a plan to inflict bodily
injury or commit a crime of violence; intentionally used to plan a crime,
attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal
activity; sought or offered to prove or disprove a claim ... of professional
misconduct or malpractice filed against a mediator; sought or offered to prove
or disprove abuse, neglect, abandonment, or exploitation in a proceeding in
which a child or adult protective services agency is a party...."
Most notably, however, is the
exception to mediation privilege in UMA Section 6(b), which allows a court,
administrative agency (perhaps including an ALJ), or an arbitrator to make a
determination that the importance of the evidence sought to be produced from the
mediation outweighs the interest in protecting the confidentiality in cases
involving a felony [or misdemeanor] or in a proceeding to "prove a claim to
rescind or reform or a defense to avoid liability on a contract arising out of
the mediation."
Compare that, however, to
Maryland Rule 17-109, which sets forth very narrow exclusions to mediation
privilege. 17-109(d) permits disclosure by a mediator or party to the mediation
of mediation communication to a potential victim or to the appropriate
authorities to the extent that they believe it necessary to help prevent serious
bodily harm or death, or to assert or defend against allegations of mediator
misconduct or negligence. The rule also has a cross reference to permit
disclosure where acts of child abuse are suspected.
The language adopted by the Court
of Appeals permits parties entering into mediation to feel very secure that
their privilege will not be undone by a judge, ALJ, or arbitrator at some point
in the future.
Confidentiality of mediation
communications has been tested in other instances around the country. As
reported in ABA Dispute Resolution Magazine, Summer 2001, "[I]n a unanimous
opinion, the California Supreme Court upheld that state’s statute protecting
the confidentiality of communications made by either parties or the mediator
pursuant to a mediation. The Court said there were no exceptions, common law or
otherwise, limiting that confidentiality. "Neither a mediator nor a party
may reveal communications made during mediation." The Court added that
under the California statute, the mediator may not report to the court about the
conduct of the participants in a mediation session. Foxgate Homeowners’ Assoc.
v. Bramalea California, Inc., 26 Cal. 4th 1 (2001)." This report does not,
however, comment on exceptions in California, if any, with regard to threats of
harm or death to individuals or with respect to suspected child abuse.
Paul R. Fisher reports that in
Olam v. Congress Mortgage Company, 68 F.Supp. 2d 1110 (1999), a mediator was
ordered to testify to the limited issue of his perceptions of a party’s
capacity to sign the settlement agreement. The request was made by attorneys for
both parties in the mediation, which the Court ruled effectively waived their
rights to confidentiality. The Court did not permit the mediator to assert a
privilage in this limited instance.
Could such an exception happen
here in Maryland in light of the newly adopted Rule 17-109? It would seem
unlikely that a mediation conducted pursuant to the new Maryland Rule 17-109
would be subject to a similar outcome, but one can probably safely guess that
the rule will be tested at some point in the future.
