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Mediation Confidentiality: Who, What, Where, When, How?

By Brian R. Jerome, Esq.

What Happens in Vegas…

Confidentiality is at the heart of a mediation session and is critical to a successful resolution.  The parties must be assured that they can share sensitive information at the session, where it is necessary to see that their true needs and interests may be met, without fear of subsequent disclosure to their detriment. Such confidentiality plays an important role both in the joint sessions involving all of the disputants at the mediation session, as well as in private caucuses which the mediator may have with one or more of the parties during the course of the session.  A mediator will seek openness and candor, particularly in such private caucuses, and it is often confidences that are shared in these private caucuses that are most helpful to the mediator in assisting the parties in sculpting a resolution that meets the needs of all parties involved.

The confidentiality of a mediation process is protected, in varying manners, by the terms of the mediation agreement signed, by statute or law, such as in Massachusetts by way of the mediator confidentiality statute, MGL  c. 233, s.23C, by various rules applicable to court connected ADR programs, and by judicial decisions.  As will be seen, in final analysis it is the written mediation agreement, sculpted by the parties to meet their specific needs, that affords disputants the best opportunity to assure the confidentiality of the mediation process.

Massachusetts’ Mediation Confidentiality Statute:

MGL c. 233, s.23C statesAll memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes. 

For the purposes of this section, a “mediator” shall mean any person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.

This statute has rarely been the subject of review by the Courts in Massachusetts, which reflects how the principle of, and importance of, mediation confidentiality has been understood, sought, and adopted by those who participate in mediations. With rare exceptions, Massachusetts courts have strongly enforced the confidentiality provisions of both s.23C and confidentiality provisions contained in written mediation agreements.

Some examples follow:

I Can’t Dance, Don’t Ask Me:

Many of us who are long time mediators have had the occasion when a party to a mediation requests us to appear in Court to confirm various matters that may have arisen at a mediation and are disappointed when the neutral respectfully declines based upon the confidentiality provisions contained in the written mediation agreement and/or the provisions of the confidentially statute.  Even when the matter at issue is clear in the mind of the mediator and could be clarified with his testimony, a mediator must decline to share communications made at a mediation so as to enforce and maintain the strict, overriding, and critical principle of the confidentiality of the mediation process.

This issue was addressed in an important, yet unpublished opinion of a single justice of the Appeals Court, Judge Cynthia Cohen, in 2002, in cases involving the Archdiocese of Boston. In Francis Leary a/k/a/ and Others v. Father John J. Geoghan and Others, a Superior Court judge had ordered a mediator to testify at trial as to whether or not parties to a dispute had reached a settlement in the course of mediation. In so ruling, the trial judge held that confidentiality is a privilege held by the parties and not by the mediator. In so finding, she determined that if the parties were found to have waived the privilege, either affirmatively or as a byproduct of other actions, then the mediator could be compelled to testify. The mediator appealed the ruling to a single justice of the Appeals Court. That Single Justice found that “[U]nlike the mediation statutes in some other states, G.L. c. 233, sec. 23C confers blanket confidentiality protection on disclosure in judicial proceedings, without listing any exceptions …. Also unlike some other statutes, G.L. c. 233, sec. 23C, is silent as to whether confidentiality ever may be waived, and if so, by whom.”  The Single Justice went on to conclude that “whether or not the parties have chosen to maintain the confidentiality of the mediation, G.L. c. 233, sec. 23C, does not permit a party to compel the mediator to testify, when to do so would require the mediator to reveal communications made in the course of and relating to the subject matter of the mediation. Compelling such testimony, even if potentially helpful to the motion judge’s decision on the merits of the parties’ dispute, would conflict with the plain intent of the statute to protect the mediation process and to preserve mediator effectiveness and neutrality.”  See also 47 Mass. Prac., Mediation and Arbitration § 5.2 (2008 ed.)

In another case where a law firm was defending a claim of legal malpractice brought against them by a client who alleged he was coerced by his attorneys into a settlement at a mediation session, the defendant law firm sought documentary information and deposition testimony from the mediator concerning events at a mediation.  A Superior court judge denied such requests based upon the provisions of the written mediation agreement in place and the provisions of MGL c. 233 s. 23C. See In the matter of Charles Sutera, Jr., Suffolk Superior Court C.A. #: 03-2158F.

In contrast, in another case, a Justice of the Superior Court had considered an offer of settlement made in a mediation for purposes of determining whether an insurer had failed in bad faith to settle a claim. On appeal, the Supreme Judicial Court approved the trial judge’s consideration of the offer in mediation, finding that the offer had been put in issue by the plaintiff’s bad faith claim. Bobick v. U.S. Fidelity and Guar. Co., 439 Mass. 652, 658, 790 N.E.2d 653, 658 (2003). See also St. Paul Mercury Ins. Co. v. Dick Corp., 2005 WL 2525300 (Mass. Super.  Ct. 2005) (Gants, J.) (following Bobick, in ruling that the mediation privilege was waived when mediation discussions were put in issue by a bad faith claim).

Dual Role of Neutral in MED-ARB:

In Modern Continental Construction Company Inc., v. Zurich American Insurance Company, Inc., et al,  Suffolk Superior Court No. 033197BLS1 ( April 19, 2006), Judge Peter Agnes, dealing with a case involving a combined Med-Arb agreement, found that the mediation confidentiality privilege applies even when the parties have entered into a “med-arb” agreement under which, if a mediation is unsuccessful, in a dual role, the mediator proceeds to serve as an arbitrator of the same dispute.   “The mere fact that the mediation portion of the ADR process did not result in an agreement or resolution does not serve as an implicit waiver of the privilege. Under the circumstances of this case, there has been no waiver of the blanket confidentiality privilege conferred by G.L. c. 233 § 23C, and therefore, to the extent that Garrett seeks documents produced during the mediation that were never resubmitted or otherwise independently utilized during the arbitration, Garrett’s motion must be denied.”

Requirement of Written Agreement under 23C:   

It is important to understand that under MGL s. 233, c.23C if the mediator is not appointed by a judicial or governmental body, the requirements of the statute are satisfied only after a written agreement to mediate has been executed.  See Erskine White et al v. Susan A. HOLTON, dba Gabriel Ames Associates, Superior Court No. 927915E, Oct.4, 1993.  For that reason, the mediator and the disputants should take all needed steps to assure that a written mediation agreement has been signed not only by all of the parties and their representatives, but also by all who participate in the mediation process whether in person or by other means such as videoconference or by telephone.  The mediation agreement generally only binds the persons who actually signed it. Accordingly, every participant in the mediation process should sign a confidentiality agreement, including parties and their lawyers, witnesses, observers, and those who are likely to come into contact with confidential information generated during the process of mediation.

In the Presence of the Mediator” under 23C:

Though MGL c. 233 states that only statements made “in the presence…..of a mediator,” are to be confidential, many Massachusetts commentators as well as certain judicial decisions suggest that this privilege should apply not only to statements made in the presence of a mediator, but to settlement discussions among the parties that occur after or as a result of participating in a mediation. See Fontanills v. Barron & Stadfeld, P.C., 2007 WL 2367630 (Mass. Super. Ct. 2007) (Curran, J.) (refusing to order the production of records of settlement negotiations because of, inter alia, “the longstanding doctrinal and policy preference that settlement negotiations are off limits”).  In Modern Continental Const. Co., Inc. v. Zurich American Ins. Co., 21 Mass. L. Rptr. 114, 2006 WL 1258760 (Mass. Super. Ct. 2006) (van Gestel, J.), the court applied the mediation privilege more broadly to encompass all documents exchanged in a mediation, not just to statements made in the presence of the mediator.  Please also see 49 Mass. Prac., Discovery § 4:16.

He May be Wise, But is he “Trained” under 23C?

In some situations, the parties may mutually chose a mediator who is wise, experienced, and respected, but nonetheless does not have the training required to apply the confidentiality provisions of the statute applicable. § 23C requires that a mediator have completed 30 hours of mediation training, however the type of training is not specified in the statute.

In Erskine White et al v. Susan A. Holton, dba Gabriel Ames Associates, Superior Court No. 927915E, Oct. 4, 1993, The Court refused to accept the mediator’s “hundreds of hours of training in conflict management” as a reasonable substitute.

Confidentiality in Cases Involving Government Entities:

When a governmental agency or other public entity is a party to a mediation, it may be subject to so-called sunshine or public meeting laws, which require that decisions and meetings of governmental boards, or even informal discussions in which a quorum of their members participate, be open to the public when documents generated in a mediation are received by a representative of the public agency they may become public records under statutes such as the federal freedom are firm of information act and its state counterparts.  Disputants must anticipate such disclosures and deal with them in the written mediation agreement and in any closing documents signed.

Confidentiality Protections in Evidentiary Rules, Settlement Negotiations, and Offers to Compromise:

Settlement negotiations and offers to compromise have long been protected from admissibility in evidence in Massachusetts. See, e.g., Liacos Brodin Avery, Handbook of Massachusetts Evidence (7th Edition, and 2005 Cumulative Supplement), sec. 4.6. “This rule is founded in policy, that there may be no discouragement to amicable adjustment of disputes, by a fear, that if not completed, the party amicably disposed may be injured.” Strauss v. Skurnik, 227 Mass. 173, 175, 116 N.E. 404 (1917). Since mediation is a recognized method of amicable adjustment of disputes the protection of confidentiality applied to settlement negotiations and offers to compromise ought to apply as well to the materials gathered for and utilized in the mediation process.

In the Matter of the Reorganization of Electric Mutual Liability Ins. Co. Ltd. (Bermuda ) 425 Mass. 419, 422, 681 N.E.2d 838 (1997), the mediating parties entered into a written agreement of confidentiality regarding the materials gathered for and presented at the mediation. This written agreement provided yet another basis for keeping the mediation materials confidential. The agreement further demonstrated that reasonable precautionary steps were taken by the parties to the mediation to keep the material confidential. This Court held that mediation materials are protectable and not admissible as evidence and further, that there can be no waiver of the privileged status of these mediation materials. This Court further held that the work-product doctrine may also apply since most of the materials at issue contained information gathered in what is traditional preparation in anticipation of litigation protected by Mass.R.Civ. P. Rule 26(b)(3) and the cases interpreting it. See, e.g., Liacos Brodin Avery, Handbook of Massachusetts Evidence (7th Edition), sec. 13.4.10.

Likewise, in Targus Group Intern., Inc. v. Sherman, 21 Mass. L. Rptr. 217, 2006 WL 2205508 (Mass. Super. Ct. 2006) (van Gestel, J.), the court considered and enforced the terms of an agreement in principle reached at the end of a mediation, even while acknowledging that the “protection of confidentiality applied to settlement negotiations and offers of compromise ought to apply as well to mediation.”  See also Fontanills v. Barron & Stadfeld, P.C., 2007 WL 2367630 (Mass. Super. Ct. 2007) (Curran, J.) (refusing to order the production of records of settlement negotiations because of, inter alia, “the longstanding doctrinal and policy preference that settlement negotiations are off limits”).

Protections Afforded under Federal Rules of Evidence 408:

The best-known and most widely applied evidentiary rule as to confidentiality is the federal rules of evidence 408 and its state counterparts.  It states:

Rule 408. Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish–or accepting or offering or promising to accept–a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

It should be noted that these rules are not guarantees of confidentiality.  Rule 408 governs what could be admitted into evidence during the trial but it does not limit what a party or lawyer can say in other contexts such as a discovery deposition, arbitration, informal conversation, or newspaper article. Rule 408 applies to hearings in federal courts, but not state courts or administrative proceedings. Rule 408 does not cover all information that is provided during settlement discussions but only evidence that someone furnished or offered valuable consideration in compromise or attempting to compromise a claim for the purposes of proving liability for any injury or invalid invalidity of the claim or its amount. Rule 408 also has many exceptions and does not provide an absolute bar as to introducing evidence about what occurred in the mediation. Rule 408 does not provide any protection as to comments made by a mediator. Parties who breach rule 408 usually risk only a judicial reprimand.

Rules of the Supreme Judicial Court SJC, Rule1:18, Uniform Rules on Dispute Resolution 9H:                                    

The importance of the principle of confidentiality in mediation is also reflected in its expression as an ethical principle within the rules on court-connected dispute resolution adopted by the Supreme Judicial Court. See Rules of the Supreme Judicial Court, Rule 1:18, Uniform Rules on Dispute Resolution Rule 9(h). Given that preservation of confidentiality is considered essential to the proper functioning of mediation, once communications within a mediation falls within the privilege conferred by statute, there is no policy justification for later allowing disclosure of information acquired during the mediation. Thus, everyone with access to mediation information is burdened by the privilege. See Modern Continental Construction Company, Inc., supra.

So What’s a Disputant to do to Protect Themselves up Front?  The Written Mediation Agreement:

The written mediation agreement itself offers the best opportunity for the parties to tailor confidentiality protection to their particular needs and assure the confidentiality that they desire.   A written agreement can contain agreed confidentiality provisions in situations where the specific confidentiality statute, such as MGL c.233, S.23C, may be somewhat uncertain, whether as to what processes and neutrals are covered, what type of mediator training requirements are needed, what category of information is protected, who is the holder of the privilege, and whether the privilege is qualified or absolute.  Typically such agreements include language prohibiting the parties from calling the mediator as a witness or from subpoenaing the mediator.  Such a provision is important for mediators, for whom confidentiality – and impartiality – is stock in trade. Most of us who mediate have no wish to be in the position of disclosing information revealed to us in confidence or providing testimony that may give one side victory over the other.  But confidentiality provisions fundamentally protect the parties to the mediation. Before mediating your dispute, review the language of the written agreement to mediate with care.

Please review our MDRS Mediation Agreement and MDRS Mediation Guidelines. It is also good practice to stamp all correspondence arising out of the mediation with words such as “confidential mediation communication” or similar titles to increase the likelihood that privacy assurances will be respected.  In very sensitive cases where confidentiality is vital, the parties might consider putting their agreements about confidentiality into a stipulation that can be approved by a court or in a separate judicial order that will be enforceable with contempt sanctions.

We hope that this information concerning mediation confidentiality has been helpful to you.  We at MDRS are committed to maintaining the confidentiality of all mediations in which we are involved. Should you have any further questions about this topic, or having to do with a particular case you are involved in, please contact us and we will make every effort to give you direct answers to best serve your needs and/or those of your client(s).