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Privacy in mediation bears close monitoring

FOI Alert Volume 4 Issue 3 (1998-99)

A uniform mediation act, with confidentiality of discussion at its core, poses a danger to public access of information when public bodies or public officials seek mediation rather than the courts for resolution of disputes.

Mediation is one answer to a societal problem of seeking a timely day in court.

Representatives of the American Bar Association and the National Conference of Commissioners on Uniform State Laws met March 19-21 in Indianapolis to continue discussion and refine draft language for a uniform act on mediation.

The Society of Professional Journalists has status as an observer. Other observers represented the interests of mediators.

SPJ will continue to participate in discussions by this drafting committee because of the inherent risk of hiding the public’s business under the cloak of confidentiality through this act.

The eventual outcome, a proposed uniform act on mediation, may be presented to all state legislatures for adoption. States would have the right to adopt, substantially adopt or do nothing.

The committee will present its draft as a first reading at a National Conference of Commissioners on Uniform State Laws meeting July 29-30 in Denver.

The 90-minute presentation will include an invitation for comments, which will lead to more discussion for the drafting committee. A second reading is scheduled at the national commissioners’ annual meeting in 2000. The National Conference of Commissioners on Uniform State Laws and the American Bar Association House of Delegates must approve all proposed legislation before it is sent to the states for individual consideration.

Participants at the Indianapolis meeting spent two and half days on three double-spaced pages of language. It will be a slow and deliberate process.

The language of the act establishes a privilege of confidentiality for mediators and disputants that prohibits what is said during mediation from being used in civil, juvenile, criminal misdemeanor, arbitration or administrative proceedings.

Some exceptions to confidentiality have been drafted and others have been offered for discussion. For example, when sides in mediation reach an agreement, the agreement can be made public. Other exemptions concern causing injury to a person, planning a crime, protecting a child, etc.

None yet includes exemptions for matters of public policy or public entities.

Scott Hughes, law professor at the University of Alabama School of Law and an observer at the Indianapolis meeting, said he believes that confidentiality is not needed and that it carries a social and legal cost.

"Every time you create a privilege, you restrict the ability of the courts to delve into the truth because you prevent certain information from coming to the court," said Hughes. "And to me, the social cost outweighs the gain from mediation."

Hughes finds no evidence to suggest that settlement rates are higher in comparing mediation and negotiation between parties in litigation.

Meditation appears to settle disputes that would probably be settled by negotiation before going to court, said Hughes.
Mediation confidentiality raises the bar over the ordinary practice of negotiation in litigation. Hughes believes that a mediation settlement is nothing more than a contract to settle a dispute. But contract law protects parties against fraud, unconscionability, overreaching or mutual mistake. For example, if two parties enter into a contract and one party later finds out he or she was defrauded, an action may be brought to set aside the contract.

In contrast, Hughes argues, a wounded party in mediation can’t tell what went on in the confidential mediation, which creates unequal access to resolution. "Those who get negotiation get one playing field and those who can afford a mediator and are savvy enough to have one get a different playing field," said Hughes. "They get a higher bar. You basically can lie with impunity." The cost of mediation also raises an issue of equal access for poorer people with disputes.

A future revised definition of "mediation communication" is likely to include the notion of confidentiality "unless the disputants reasonably don’t expect confidentiality." This shifts the burden on people who are doing public policy to retain public access. "This is probably one of the most troubling questions that we are facing," said Hughes.

However, where disputes involve public policy or where one of the disputants is a public entity, there should be no burden at all. But issues of public policy and public entities have not yet been squarely dealt with. Illinois Circuit Judge Michael Getty, chair of the Indianapolis meeting, doesn’t think there is disagreement over exempting confidentiality where matters of public policy are concerned. "We are not far enough down the road yet to flesh out the issue," said Getty. "Exemptions are not down clearly. At this point, there is not disagreement over public policy, but we haven’t decided how to articulate it."

The working draft contained a section entitled Public Records and Public Meetings Laws that reads: "Each State should indicate whether that statute supersedes public records and public meetings laws." With limited discussion because of time constraints before adjournment, the section was removed for the purpose of the first reading. The committee’s reporters will include a note in the draft describing the issue, and the section will be reinserted later in the process.

The original wording causes some concern. For example, a public entity in a state having an open records act or an open door act or both should not enter into an agreement to mediate if, as a condition of mediation, the proceedings are confidential. Period. And if state legislatures have already adopted a policy of openness, public entities in those states have a duty to disclose public business.

The proposed act should not allow going in through a back door to circumvent state policies that are already enacted. Future drafting of this section is critical to the principle of openness and needs careful monitoring and participation by the Society of Professional Journalists.

The drafting project has established a Web site at http://www.stanford.edu/group/sccn/mediation/ where a revised copy after the Indianapolis meeting will be posted. Richard Reuben, senior research fellow at Harvard Law School, and Nancy Rogers, professor of law at Ohio State University College of Law, are legal resources and reporters for the drafting committee. Comments and suggestions should be sent to both of them at rcreuben@law.harvard.edu and nrogers@osu.edu

James W. Brown is associate dean of the Indiana University School of Journalism at Indiana University-Purdue University-Indianapolis. He represented the Society of Professional Journalists’ interests at the Indianapolis meeting.

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