NCJ Number
105082
Journal
Ohio State Journal on Dispute Resolution Volume: 2 Issue: 1 Dated: (Fall 1986) Pages: 1-36
Date Published
1986
Length
36 pages
Annotation
Legislation being sought by the mediation community to provide blanket protection of confidentiality in mediation is undesirable and could have effects opposite from those intended.
Abstract
Such an expansion of the statutory or common law mediation privilege could actually reduce the acceptance of private dispute resolution and could hamper activities like the enforcement of restraints on illegal business conspiracies and combinations, the protection of individual rights, and the enforcement of the criminal law. Supporters of the expanded legislation have overlooked the complexity of the problem of mediation confidentiality. Mediation confidentiality has three basic meanings, can apply to six different aspects of a mediation proceeding, and can be enforced by five different types of individuals or entities against five different types of individuals or entities. In addition, confidentiality can be granted with no exceptions, with one broad exception, or with a list of specific exceptions. At least 14 States now have confidentiality statutes, and three provide blanket protection. The Massachusetts law providing blanket protection exemplifies the problems with such statutes in that it is both overinclusive and underinclusive. It is overinclusive because it contains no exceptions for fraud or other abuses of the mediation process. It is also underinclusive because it applies only to judicial or administrative proceedings involving former parties to the mediation. If the current efforts to enact a blanket protection are successful, the result is likely to be a law with similar problems. A more appropriate approach would be to make minor modifications in Evidence Rule 408. 90 footnotes.