NCJ Number
159225
Journal
Seton Hall Law Review Volume: 26 Issue: 1 Dated: (1995) Pages: 1-43
Date Published
1995
Length
43 pages
Annotation
This article analyzes the plans and local court rules in various Federal court districts to demonstrate some of the problems that can arise when drafting mediation confidentiality provisions under the Civil Justice Reform Act of 1990 (CJRA).
Abstract
CJRA required each Federal district court to implement a civil justice expense and delay reduction plan by the end of 1993 to implement mechanisms to address causes of excessive expense and delay in the Federal courts. The analysis revealed that the mediation confidentiality rules created in response to the CJRA vary widely in the scope of protection they afford. Some provisions are overinclusive; they create absolute or near-absolute protection for medication communications while failing to provide for any exceptions to confidentiality. These provisions also typically fail to give the court any guidance regarding the appropriate factors to consider in deciding whether to overcome the privilege. Other provisions are underinclusive, or are poorly drafted, making it unclear what information is protected. These problems may give rise to significant disputes in the future. Therefore, courts that have no confidentiality rule should seriously consider doing so, while those that already have a rule should consider whether it properly protects mediation confidentiality. Footnotes and appended excerpt from legislation