Alternative Dispute Resolution Mediation and Confidentiality

305 ALTERNATIVE DISPUTE RESOLUTION: MEDIATION AND CONFIDENTIALITY Kashif Mir Zubair* Published in: Corporate Law Decisions Year of Publication: 2012 Suggested Citation: 2012 CLD Journal Section p.9 Mediation has generally been regarded as a peripheral form of dispute resolution in Pakistan, especially for the resolution of commercial disputes. In recent years, however, the ability of mediation to achieve timely and mutual beneficial outcomes for various kinds of disputes has been recognized in the country. The Karachi Centre for Dispute Resolution (KCDR), established in 2007, has pioneered in institutionalised commercial mediation in Pakistan. This Article aims to provide an analysis of the vitality of the confidentially privilege , a fundamental tenant of the mediation process; and will highlight the need to afford it adequate legislative and judicial protection. (A) Introduction Over the last few decades, significant changes have occurred in the way conflicts are resolved. Alternative dispute (Cit. p.10) resolution ( ADR ) has proliferated and various methods of ADR are now employed extensively to resolve disputes. This growth of ADR has even been characterized by some as a quiet revolution .[1] In many jurisdictions various methods of ADR are now closely connected to the judicial process itself and in certain situations, are also mandated by the courts. The appeal of mediation, in particular, has greatly increased; primarily due to its ability to provide parties to a dispute with a formalized, facilitated opportunity to negotiate, converse, and explore options -- and to exhaustively determine if a settlement is possible.[2] In addition to its other benefits, mediation also seems to institutionalize a fundamental by-product of the adversarial judicial process. A significant number of parties in litigation engage in what has been termed as liti-gotiation a process of negotiation, adjustment, and accommodation that is carried on against the backdrop of the series of events leading up to trial and, in very rare cases, beyond. [3] Therefore, what mediation often accomplishes is something that is beyond the adversarial process and mediation should not be viewed just as a substitute for litigation but as a viable and independent institution and should be afforded such recognition both by the legislature and the judiciary. With the ever-increasing use of mediation, certain conflicts have arisen between the values and principles that the traditional system of justice seeks to impose; and the fundamental tenants of the mediation process. Proponents of ADR argue that the proven ability of mediation to achieve timely, effective and mutually beneficial settlements of disputes is testament to the fact that mediation and the judicial system are built on incompatible assumptions about human nature, human capacity, and the goals of conflict interaction. [4] The emphasis on confidentiality in the mediation process has emerged as one such area of (Cit. p.11) incompatibility. The traditional legal system in almost all jurisdictions has, to a certain extent, evolved on the premise of consideration of all cogent evidence. As this Article will illustrate, confidentiality is the bedrock of effective mediation, without which its vitality is lost. This conflict can only be resolved with a better understanding of the reasons why the notion of strict adherence to confidentiality is espoused by the mediation profession. This understanding has to be supplemented by the way of an acknowledgement in legal circles that the law needs to accommodate a confidentiality privilege in relation to mediation, albeit while balancing it with other pertinent considerations. The scope of the kind of conflicts in which mediation is often employed has widened. Its application to the resolution of disputes in relation to family, divorce, labour, insurance, and construction is now well established. It is also gaining ground for commercial and business disputes, and is usually either an alternative, or precursor to litigation in such cases.[5] It has therefore become essential that traditional legal norms be reconciled with the essentials of effective mediation. This Article will analyse the merits of the theoretical justifications for the protection of confidentiality in mediation, its vitality to the mediation process and its limitations. It will also provide a brief overview and general assessment of the existing approaches to the protection of confidentiality in different jurisdictions. In doing so, this Article will endorse the view that while for the practice of effective mediation, the over-emphasis on confidentiality is more than justified; its limitations and the approaches to its protection suffer from a lack of emphasis. (B) Theoretical Justifications For Protection Of Confidentiality As A Privilege In Mediation The need for protection of confidentiality in mediation has been greatly emphasized in theory and such a notion, often does initially appeal to common sense. It is, however, pertinent to mention that a large body of arguments in favour of retaining strict adherence to confidentiality vis-a-vis mediation are in fact logical extensions of legal rationales (Cit. p.12) from other areas in which the law honours confidentiality as a means of encouraging candid communication. [6] For example, the argument that confidentiality encourages open and frank communication between parties leading to an effective settlement agreement is paralleled on the rationale for attorney-client privilege, which purports that this privilege encourages full and frank communication between attorneys and their clients, and thereby promotes boarder public interests in the observance of law and administration of justice'.[7] There is a dearth of empirical evidence in relation to the various aspects of the mediation process, which has made it impossible for a sound qualitative assessment of the effects that confidentiality has on mediation. There is however a reliable set of opinions from both mediators and participants, based on their experience, as well as scholarly work, which seems to endorse the theoretical beliefs that are used as justifications for the legislative and judicial protection of confidentiality as a privilege and also serve as a testament to its criticality to an effective mediation. These have been analysed below. It is important to be mindful of the fact that mediation is increasingly being employed to resolve a wide range of disputes. The analysis provided below, however, is general and does not provide an exhaustive analysis in the context of specific types of disputes, nor is it a thorough comparison with the shortcomings of the traditional legal system in relation to confidentiality. It does however illustrate how the element of confidentiality enhances the efficacy of the mediation process and attempts to explain whether the same justifies the emphasis on its protection. It may also be said that confidentially serves to protect other fundamental tenants of mediation, such as fairness, neutrality of the mediator, and most importantly trust of the parties in the mediation, and that too has been illustrated below. Firstly, the success of the mediation depends heavily upon the openness and candour of the parties to the dispute. Unhindered expression of thoughts and ideas without the fear of it going on the record in anyway facilitates the (Cit. p.13) creation an atmosphere where the parties are able to effectively communicate between themselves and with the mediator. In disputes where a compromise is necessary for its resolution, the parties will be more willing to admit to certain facts that they otherwise would not have disclosed. In this way, the mediator is always in a better position to chalk out base line positions and find areas of mutual agreement eventually leading to a fruitful settlement.[8] In the absence of confidentiality, this is harder to achieve. Confidentiality, therefore, is the primary enabler of candour and forthrightness in mediation. Another argument that illustrates the vitality of confidentiality in mediation is that it acts to preserve the element of fairness in the proceeding. In certain cases, the very appeal of mediation stems from the fact that what is said and discussed during the mediation cannot be subsequently used prejudicially against any party to the dispute. There are no records kept, no statements taken under oath and no specific standards to which statements made during mediation are held. The mediator often does, however, take notes in order to better observe the communication between the parties and facilitate any agreement. When the mediation is concluded, these notes are destroyed and there is absolutely no written record of what was said or done during the mediation process, other than may be a settlement agreement.[9] This strict adherence to safeguard confidentiality in proceedings ensures that any statement made by any party cannot be used at any subsequent time or in any subsequent proceeding of any kind in any setting. If such zealous observance of confidentiality is not present in mediation, then the process will inevitably lead to mediation being used as a discovery device against legally naive persons , especially when the mediation is connected in some way to a legal entity such as a prosecutor s office .[10] The participants in the mediation therefore have to be assured that there will be no dire consequences for their open and honest disclosure of facts that may lead to a successful settlement of the dispute. (Cit. p.14) The mediator s neutrality is perhaps one of the most crucial factors that may contribute to the success or failure of any mediation, as it fosters trust. Instilling trust is arguably the mediator s most sacrosanct duty. A mediator not only has to remain neutral, but it is vital that he/she may also seem to be neutral in the eyes of the participants. The presence of complete confidentiality, one that is protected as a privilege in the eyes of the law, potentially relieves the mediator from being put in the position where this neutrality is compromised. If the mediator is compelled, under law, to divulge any information about the mediation, then almost automatically the mediator s neutrality is compromised. This was explained very coherently in the case of NLRB v. Joseph Macaluso Inc. where it was concluded that the complete exclusion of the mediator testimony is necessary to the preservation of an effective system of labour mediation, and that labour mediation is essential to continued industrial stability, a public interest sufficiently great to outweigh the interest in obtaining every person's evidence. [11] This is illustrative of the fundamental danger of not adequately protecting confidentiality in mediation. It is understandable that in certain cases, interests of justice may be served by compelling the mediator to testify. However, by doing so, a dangerous precedent may be set, with grave consequences for the institution of mediation itself. A mind-set that regards mediation as only subordinate and supplementary to the traditional adversarial legal system is, arguably, an archaic one. Mediation and its vast and distinctive benefits have now been recognized in both academia and the legal profession. In any jurisdiction, where a mediator is compelled under law to give information that would otherwise be confidential, the consequences will just not be detrimental to the disputants for that one specific case, but in fact to the institution of mediation itself. This would seriously impair or more likely make it impossible for all mediators in any subsequent mediation in that jurisdiction to have a perception of neutrality and this in turn will vitiate any trust that disputants may have in the mediator. The very dynamics of the mediation process demand the attachment of a viable confidentiality privilege. For example, Deason explains that in a typical mediation setting, (Cit. p.15) interdependence and risk are inherent themes that create a need for trust in mediation.[12] Briefly put he argues that, firstly, interdependence in mediation means that the parties are dependent on each other for the resolution of their problems. This interdependency is of particular importance if one considers the fact that the mediator is neither a trier of fact nor does he/she have any coercive power. This is in contrast with other types of negotiations where a dispute is not necessarily the exclusive focal point of the negotiation agenda, whereas in mediation the exclusive focus of the communication between the parties pertains to the dispute. The need for trust that is fostered by confidentiality therefore becomes paramount when one considers this aspect of mediation. This interdependency between adversaries is initially uneasy and can only be reconciled into a more relaxed and fruitful interaction between the parties only when an element of trust is present. If the participants of the mediation were faced with a fear that the contents of the discourse during mediation may be submitted as evidence later in court, then it is only natural that apprehension of the same will inhibit communication. Secondly the element of risk is grave in any mediation. Normally, legal systems across many jurisdictions extend a confidentiality privilege to communications such as those between attorneys and clients as well as those between doctors and patients (albeit with some exceptions.)[13] In mediation, the need for such a privilege is even greater as a neutral mediator facilitates the communication between the adversaries. The risk of disclosure, therefore, is far greater than in other privileged interactions. In the absence of adequate protection of confidentiality, the risk of disclosure will only accomplish to destroy the trust the parties have in the process and thereby diminish its efficacy. There is also a need for protection against the risk of disclosure in situations where a third party not part of the mediation process may seek to use information from the mediation to the detriment of any participant. For example, a third party may seek to introduce (Cit. p.16) evidence in court from a mediation in which it did not participate. In such a case, the legislation and the courts should seek to extend the scope of the confidentiality privilege. Failure to do so would essentially blur the line between the judicial function and the mediation function. The ruling in the case of Folb v. Motion Picture Industry Pension and Health Plans is illustrative of the absurdity of the premise that a third party may seek discovery of communications in a mediation, and it was held here that any and all communications in the course of mediation are non-discoverable.[14] Often mediation is initiated in the backdrop of litigation or arbitration. This is particularly true for disputes of a commercial nature that can be subject to long convoluted litigation that binds various disagreements together, leading to a seemingly never ending impasse. Mediation, in such cases, in the very least, can help the parties resolve some of their issues, if not all, quickly and effectively. In such cases, Deason has identified another major role that confidentiality plays. He explains that confidentiality in mediation is essential if the judicial function is to be kept separate from the mediation function as was also illustrated above. This is particularly important when mediation has been mandated or referred by the court.[15] It is therefore, correct to conclude, that the integrity of both the process of litigation and of mediation will be weakened if they are entwined in a way where what is discussed in the course of mediation is used in litigation. There are also more obvious explanations put forward for the need to protect confidentiality. For example, privacy is a motivating factor in certain sensitive matters for electing mediation as the choice of ADR method, and can only exist if there is adherence to confidentiality. It is also important to be mindful of the fact that the growth and stability of the profession of mediation will be adversely affected if a precedent of subpoenas and constant interference from the courts is set. This will tantamount to a constant (Cit. p.17) encumbrance to the practice of mediation and will also burden the courts unnecessarily.[16] The above justifications undoubtedly do establish the vitality of confidentiality to the mediation process. There are however, fundamental limitations to this confidentiality that are apparent both in practical terms and in its relationship to the policies for public good and as well in relation to the concepts of justice. The major shortcoming of the theoretical rationalizations for strict adherence to confidentiality is that they seem to be detached from the main area of contention between the interests of the institution of mediation and general public policy and justice considerations. This has been analysed in the next part of this Article. (C) The Limitations Of Mediation Confidentiality There is a pervasive perception among potential participants that a mediation session will be wholly confidential and immune from any investigation. Such a notion has also been endorsed by many commentators on the subject, for instance, as Lovenhiem puts it "There is no duty of the mediator greater than the duty to preserve the confidentiality of everything revealed to him or her during the hearing . and that "mediators are bound by the oath of office and by the rules of the particular center where they work. [17] This absolutist approach, however, defies common sense and is not contemporary practice. There are always exceptions to confidentiality privileges, and such exceptions are even present in the sacrosanct attorney-client privilege of confidentiality in cases of threats of violence and bodily harm. Similarly in many jurisdictions, legislative provisions exist that allow a mediator may break confidentiality in case of imminent threat of bodily harm and child abuse, and the justifications for the same are unquestionably sound.[18] The way confidentiality is observed by mediators is inconsistent in practice and very much dependent on the nature of the information. The actual duty of the mediator for caution in handling information relating to the mediation (Cit. p.18) proceedings varies greatly. It can range from absolute strict secrecy to one where the mediator is only prohibited from giving evidence in relation to the mediation in a court of law. It is therefore vital that the participants of any mediation should be made aware of the limitations of confidentially before the initiation of mediation, and that fanciful notions of absolute confidentiality should not be erroneously trumpeted.[19] There have been several cases that ended up in court where the participants of the mediation where under the impression that confidentiality was absolute, when it was in fact not. It is imperative that the mediators explain to the participants the extent of confidentiality and privilege protections that apply to the mediators, parties, and nonparty participants, and in a manner consistent with the law of the jurisdiction. [20] Frequently, confidentiality is also waived by the mutual agreement of the participants. The confidential nature of mediation is often justified on the basis that it serves a greater good for the public at large. This rationalization, however, lacks consideration of an important feature of the current trends in mediation. The deficiency in legislative control of mediation in relation to certain types of disputes is an area where confidentiality represents a grave danger. Mediation is now extensively used in family disputes, even in ones where child abuse or spousal abuse may be involved. In absence of any strong exclusionary provision in law that prohibits the use of mediation in such sensitive cases, adherence to confidentiality may represent a momentous miscarriage of justice in relation to victims of abuse. This in turn presents an ethical dilemma for both the profession of mediation and legislative policy. There is no uniform set of rules in any jurisdiction with a cogent framework that places a duty on the mediator to break confidentiality and report abuse.[21] The mediator generally has exclusive discretion whether or not to break confidentiality to report abuse based on his or her assessment of the severity of the same. This shortcoming, however, may be attributed to both the lack of appropriate legislation barring applying mediation to some disputes, lack of regulatory control for the same and to a certain extent also (Cit. p.19) to the indifference that mediators have for the need to be more selective in their choice of disputes to take up. These deficiencies, however, can be resolved without adulterating the adherence to confidentiality. It is also reasonable to argue that advocating a mediation confidentiality privilege on the basis of equating it to to the protection offered in law to the attorney-client privilege is a comparison that is inherently flawed. The scope of the attorney client privilege is related to communications between a lawyer and the client, and usually the interests of an attorney and his or her client are perfectly aligned. The communication is not in a setting where the objective is settlement of the dispute in the presence of the adversary. The main focus of attorney-client communication is usually to chalk out strategies against the adversary. In contrast in a mediation setting, the mediator is sometimes made aware of certain facts while facilitating a settlement. Perhaps, the security of a confidentiality privilege may sometimes be the primary motivating factor behind disclosure of facts relating to abuse. Mediation is a facilitative mechanism, and therefore confidentiality should never be the basis to make it an exclusive domain of justice. The dangers of advocating absolute confidentiality therefore becomes apparent when one realizes that the function of mediation should not be to undermine the traditional justice system. Finally, it is important to note that there is also a significant body of opinion, which tends to refute the theoretical justifications analyzed in Part (B) of this Article on their merits. It can be argued that the above arguments are made with an implicit assumption that the profession of mediation should be protected for the reason that doing so is in the public good. This public good is assumed to be strong enough to outweigh the interests of justice in specific cases. These assumptions have been made, however, with no significant empirical data and are to some extent hypothetical. There is no qualitative study that establishes that the presence of a confidentiality privileges enhances trust, neutrality of the mediator or leads to an effective mediation result. It has also been noted that , no data exists to show a difference in growth rates or overall use of mediation services between jurisdictions with privileges and those without such protections, or from within any (Cit. p.20) jurisdiction before and after the creation of a privilege. [22] This line of argument, however, is entirely cynical and somewhat futile. It is noteworthy to mention that the rationalizations explained in Part (B) of this Article might not be based on any empirical evidence from mediation itself but are in fact supported by various persuasive studies in human behavior, negotiation, phycology etc. Secondly, the lack of empirical evidence may be taken as a testament to the success of maintaining a degree of confidentially in mediations so far, as the taking of empirical evidence for research is arguably a breach of confidentiality. There are however more persuasive arguments against a strict confidentiality privilege in mediation. One line of argument purports that having a confidentiality privilege coupled with the ever-increasing trend of using mediation to settle a wide range disputes will have the effect of "sacrificing potentially important evidence for subsequent legal proceedings and restrict public access to information that may be necessary to a democratic society."[23] This unfavorable aspect of a confidentiality privilege may be rectified to a certain extent with the implementation of an exhaustive legal regime setting out exceptions to the confidentiality privilege clearly. While in theory it may sound like an effective remedy, in practical terms this is ripe with complications. Incorporating certain exceptions will inevitably generate controversy and debate, as there will never be universal agreement on what exactly merits exception. In absence of empirical data from mediations, the feasibility for such a regime may not be easy to assess. Lastly, any exhaustive legislative act setting out exceptions will inevitably contain a large number of exceptions, leading to an unpredictable privilege that would be more detrimental than no privilege at all and will have the effect of instilling false expectations which could be dashed during subsequent litigation. [24] This is a valid argument against a strict or explicit privilege of confidentiality incorporated with specific and comprehensive (Cit. p.21) list of exceptions, but not so forceful an argument against a strict privilege without any emphasis on exceptions. A large number of exceptions will only encourage litigation and in turn will hold the practice of effective mediation as hostage. It has therefore been argued that having no privilege at all is better than one that gives the perception of looking strong on the outside but is in fact hollow in substance. Based on this, it has been argued that it is better to confine privilege to the domain of the practice of mediation itself that will establish a clear rule of discouraging expectations and subsequent litigation [25]. Such an argument however, is only hypothetical. While it is true that enforceability of a confidentiality privileges by statutes and by the use of case-law has generated significant debate and some controversy, it is nonetheless not a complete failure, and is in fact relatively successful. (D) A Brief Overview Of The Approaches To The Protection Of Confidentiality in the United Kingdom and the Untied States Of America Having analysed some pertinent aspects of the merits of the justifications for confidentiality in mediation and its limitation, it is important to briefly assess various methods by which this confidentiality is protected in law.[26] As discussed in the earlier part of this Article, the need to protect confidentiality has been extensively acknowledged and also recognized in academic discourse, however, enforceability of a confidentiality privilege for mediation is ripe with inconsistency and contradictions in case-law, statutes and ethical codes, as well as in evaluating mediation confidentiality contracts.[27] Lack of uniformity and ambiguity of rules are fundamental roadblocks in the way of a more harmonious relationship between the practice of mediation and traditional legal values. In the United Kingdom, the confidentiality of mediation communications is protected under the without prejudice rule which has been sufficiently established in (Cit. p.22) case-law and entails that any 'inter-party communications made in aid of settlement is both inadmissible in evidence and immune from disclosure [28] This rule however, has not been crafted exclusively in the context of mediations and therefore suffers from certain limitations in its ability to harmonize the interests of mediation with that of judicial policy. One such limitation is its inability to increase the protection where such protection is expressly sought through confidentiality agreements between the parties to the mediation. This inability is due to the fact that the rule only takes into account the public interests in the administration of justice and thereby ignores the sanctity of private contracts.[29] The Uniform Mediation Act 2001 passed in the United States is arguably a bold piece of legislation for its creation of an explicit mediation confidentiality privilege. It seeks to reinforce the pervasive judicial view that interests of public policy require that mediators cannot be compelled to give testimony and it extends the scope of confidentiality by making allowances for the assertion of privilege by those not party to the mediation. The Uniform Mediation Act 2001 has also been severely criticized, and perhaps justifiably so. There are major shortcomings that have become apparent in its provisions relating to holders of privilege and exceptions to privilege. The merits of the criticism aside, the act in the very least may be an influential force to compel other jurisdictions to adopt a uniform legislative regime for mediation protection, something that is lacking in the United Kingdom and the EU.[30] (E) Conclusion The practice of mediation has matured into a viable institution of dispute resolution as well as dispute management and should be afforded such recognition. Confidentiality being an inviolable ingredient of mediation should also be protected. The conflicts that confidentiality in (Cit. p.23) mediation has with the rules of the traditional legal system should not be perceived as a basis on which to undercut mediation, but rather should be an incentive for innovative reform. Innovation and reform are incremental processes, and the legal accommodation of mediation principles is still very much nascent. The emphasis the profession of mediation places on confidentiality is not only justifiable but also essential to its survival. The failure to adequately adjust the need for confidentiality in mediation with the norms of public and legal policy requires ingenuity, not complacency. Bibliography 1. A.K.C. KOO, CONFIDENTIALITY OF MEDIATION COMMUNICATIONS, CIVIL JUSTICE QUARTERLY (2011) 2. ARTHUR W. ROVINE, CONTEMPORARY ISSUES IN INTERNATIONAL ARBITRATION AND MEDIATION: THE FORDHAM PAPERS, VOLUME 2, MARTINUS NIJHOFF PUBLISHERS (2008) 3. CONFIDENTIALITY IN MEDIATION AND THE DUTY TO REPORT CHILD ABUSE 29 JOURNAL OF LEGAL PROFESSION. 269 2004-2005 4. DAVID SPENCER, MICHAEL C. BROGAN, MEDIATION LAW AND PRACTICE, CAMBRIDGE UNIVERSITY PRESS (AUSTRALIA) 2006 5. DOROTHY J. DELLA NOCE, ASSIMILATIVE, AUTONOMOUS OR SYNERGISTIC VISIONS: HOW MEDIATION PROGRAMS IN FLORIDA ADDRESS THE DILEMMA OF COURT CONNECTION, 3 PEPP. DISP. RESOL. L.J. 11 (2002) 6. ELLEN E DEASON, THE NEED FOR TRUST AS A JUSTIFICATION FOR CONFIDENTIALITY IN MEDIATION: A CROSS-DISCIPLINARY APPROACH 54 U. KAN. L. REV. 1387 2005-2006 AT PP. 1388 AND 1389 7. ELLEN WALDMAN, MEDIATION ETHICS: CASES AND COMMENTARIES, JOSSEY-BASS, 1ST EDITION , (2011) 8. FOLB V. MOTION PICTURE INDUS. PENSION & HEALTH PLANS, 16 F. SUPP. 2D 1164 (C.D. CAL. 1998). 9. JOHN R. VAN WINKLE, MEDIATION: A PATH BACK FOR THE LOST LAWYER 24 (2001) 10. KEVIN GIBSON, CONFIDENTIALITY IN MEDIATION: A MORAL REASSESSMENT 1992 J. DISP. RESOL. 25 (1992) 11. LAWRENCE R. FREEDMAN, MICHAEL L. PIGOFF: CONFIDENTIALITY IN MEDIATION: THE NEED FOR PROTECTION, 2 OHIO ST. JOURNAL ON DISPUTE RESOLUTION 37 1986-87 (Cit. p.24) 12. MARC GALANTER, READING THE LANDSCAPE OF DISPUTES: WHAT WE KNOW AND DON T KNOW (AND THINK WE KNOW) ABOUT OUR ALLEGEDLY CONTENTIOUS AND LITIGIOUS SOCIETY, 31 UCLA L. REV. 4, 18 (1983) 13. MICHAEL L. PIGOFF, TOWARD CANDOR OR CHAOS: THE CASE OF CONFIDENTIALITY IN MEDIATION, 12 SETON HALL LEGIS. JOURNAL. 1 (1988-1989) 14. MULLER V LINSLEY AND MORTIMER [1996] P.N.L.R. 15. NADJA MARIE ALEXANDER, GLOBAL TRENDS IN MEDIATION, KLUWER LAW (2006) 16. NLRB V. JOSEPH MACALUSO, INC., 618 F. 2D 51 - COURT OF APPEALS, 9TH CIRCUIT 1980 17. P. LOVENHIEM, MEDIATE DON'T LITIGATE 34 (1989) 18. SCOTT H. HUGHES, CONFIDENTIALITY IN MEDIATION: A CLOSER LOOK, THE CASE FOR A MEDIATION CONFIDENTIALITY PRIVILEGE STILL HAS NOT BEEN MADE, DISPUTE RESOLUTION MAGAZINE 16 (1998-1999) 19. THOMAS J. STIPANOWICH, ADR AND THE VANISHING TRIAL : THE GROWTH AND IMPACT OF ALTERNATIVE DISPUTE RESOLUTION , JOURNAL OF EMPIRICAL LEGAL STUDIES, VOLUME 1, ISSUE 3, 843 912, NOVEMBER 2004 20. UPJOHN CO. V. UNITED STATES, 449 IS 383, 389 (1981) 21. VALERIE F. BUTLER, MEDIATION: ESSENTIALS AND EXPECTATIONS, DORRANCE PUBLISHING (2004) AT PP. 6 --------- * The author holds a LLB (Hons.) from the University of Warwick and a LLM in International and Comparative Dispute Resolution from the University of London. He can be contacted at kashifzubair@gmail.com [1] See Thomas J. Stipanowich, ADR and the Vanishing Trial : The Growth and Impact of Alternative Dispute Resolution , Journal of Empirical Legal Studies, Volume 1, Issue 3, 843 912, November 2004 [2] John R. Van Winkle, Mediation: A Path Back for the Lost Lawyer 24 (2001) [3] John R. Van Winkle, Mediation: A Path Back for the Lost Lawyer 24 (2001) at pp. 847 and Marc Galanter, Reading the Landscape of Disputes: What We Know and Don t Know (and Think We Know) about Our Allegedly Contentious and Litigious Society, 31 UCLA L. Rev. 4, 18 (1983) [4] Dorothy J. Della Noce, Assimilative, Autonomous or Synergistic Visions: How Mediation Programs in Florida Address the Dilemma of Court Connection, 3 Pepp. Disp. Resol. L.J. 11 (2002) at pp. 36 [5] Arthur W. Rovine, Contemporary Issues in International Arbitration and Mediation: The Fordham Papers, Volume 2, Martinus Nijhoff Publishers (2008) at pp.273 and 274 [6] Ellen E Deason, The need for Trust as a Justification for Confidentiality in Mediation: A Cross-Disciplinary Approach 54 U. Kan. L. Rev. 1387 2005-2006 at pp. 1388 and 1389 [7] See ibid. note quoting Upjohn Co. v. United States, 449 IS 383,389(1981) [8] Lawrence R. Freedman, Michael L. Pigoff: Confidentiality in Mediation: The need for protection, 2 Ohio St. Journal on Dispute Resolution 37 1986-87, at pp. 38 [9] Valerie F. Butler, Mediation: Essentials And Expectations, Dorrance Publishing (2004) at pp. 6 [10] Supra note 8, at pp. 38 [11] NLRB v. Joseph Macaluso, Inc., 618 F. 2d 51 - Court of Appeals, 9th Circuit 1980 [12] For a detailed analysis see Ellen E Deason, The need for Trust as a Justification for Confidentiality in Mediation: A Cross-Disciplinary Approach 54 U. Kan. L. Rev. 1387 2005-2006 [13] For a detailed analysis see Ellen E Deason, The need for Trust as a Justification for Confidentiality in Mediation: A Cross-Disciplinary Approach 54 U. Kan. L. Rev. 1387 2005-2006 [14] Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998). [15] Ellen E Deason as quoted by David Spencer, Michael C. Brogan, Mediation law and practice, Cambridge University Press (Australia) 2006 at pp.86 & 87 [16] Supra note 8, at pp. 38 [17] P. Lovenhiem, Mediate Don't Litigate 34 (1989) at pp. 34, 44 [18] For a more detailed analysis on the duty to report child abuse, see Confidentiality In Mediation And The Duty To Report Child Abuse 29 Journal Of Legal Profession. 269 2004-2005 [19] See Nadja Marie Alexander, Global trends in mediation, Kluwer Law (2006) at pp. 429 [20] Ellen Waldman, Mediation Ethics: Cases and Commentaries, Jossey-Bass, 1st Edition , (2011) at pp. 271 [21] Supra note 18 at 278 and 279 [22] Scott H. Hughes, Confidentiality in Mediation: A Closer Look, The case for a mediation confidentiality privilege still has not been made, Dispute Resolution Magazine 16 1998-1999 at pp. 15 [23] Scott H. Hughes, Confidentiality in Mediation: A Closer Look, The case for a mediation confidentiality privilege still has not been made, Dispute Resolution Magazine 16 1998-1999 at pp. 16 [24] Scott H. Hughes, Confidentiality in Mediation: A Closer Look, The case for a mediation confidentiality privilege still has not been made, Dispute Resolution Magazine 16 1998-1999 at pp. 16 [25] Scott H. Hughes, Confidentiality in Mediation: A Closer Look, The case for a mediation confidentiality privilege still has not been made, Dispute Resolution Magazine 16 1998-1999 at pp. 16 [26] An exhaustive analysis is not within the purview of this Article. [27] For detailed analysis See Michael L. Pigoff, Toward Candor Or Chaos: The Case Of Confidentiality In Mediation, 12 Seton Hall Legis. Journal. 1 (1988-1989) at p. 3 [28] A.K.C. Koo, Confidentiality of mediation communications, Civil Justice Quarterly (2011) at pp. 193 [29] A.K.C. Koo, Confidentiality of mediation communications, Civil Justice Quarterly (2011) at pp. 195 [30] A.K.C. Koo, Confidentiality of mediation communications, Civil Justice Quarterly (2011) at pp. 195