Legal Issues Arising in Mediation - The Boston Municipal Court Mediation Program

• NCJ Number: 89130
• Journal: Massachusetts Law Review Volume: 67 Issue: 3 Dated: (Fall 1982) Pages: 123-129,132-136
• Author(s): R E McGinness; R J Cinquegrana
• Date Published: 1982
• Length: 11 pages
• Corporate Author: Massachusetts Bar Assoc; Crime and Justice Foundation
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

This paper considers disputants' constitutional rights that may be affected by the mediation process, nonconstitutional issues, problems that may arise subsequent to a mediation agreement, and ethical considerations that may confront a lawyer acting as mediator.

Abstract

Voluntary participation throughout the mediation process is not only crucial to the effectiveness of the mediation process, but is essential to constitute a disputant's deferral of his/her right to judicial process with its associated protection rights and authoritative dispositions. Although the due process guarantees of the 14th and fifth amendments govern many characteristics of the judicial process when a person's 'due process interest' in life, liberty, or property is affected, the Boston Municipal Court Mediation Program (BMC) cannot be considered a 'state action' subject to due process requirements, and further, neither of the disputants is coerced by the mediation process to suffer any harm that may not be remedied through subsequent judicial process. Nonconstitutional legal issues that may be involved in mediation are confidentiality and statute-of-limitation considerations. The mediation agreement used in the BMC program provides that no participant in the mediation process will reveal any mediation communication in any subsequent proceeding involving the same subject matter, and the promptness of mediation proceedings is such as to not threaten violation of any statute of limitations should subsequent litigation or judicial processing of the matter be brought. Lawyers acting as mediators should avoid any appearance of advising disputants in drafting a mediation agreement or becoming involved as counsel in any subsequent court action that may involve the disputants. The appendixes contain the form of the BMC agreement to participate in mediation and data on the BMC program. Fifty-eight footnotes are provided.