NCJ Number
96997
Date Published
1984
Length
13 pages
Annotation
Protecting the confidentiality of alternative dispute resolution (ADR) proceedings as well as other legal and practical problems with ADR are considered.
Abstract
The importance of confidentiality in encouraging candor in ADR proceedings is cited. Also considered is the possibility of protecting offers and statements made in the ADR proceeding from disclosure in subsequent litigation between the parties to the unsuccessful ADR, in litigation between one of the parties and an unrelated third party, or in litigation between two unrelated parties. Additionally, the problem of whether a third-party neutral employed in ADR can be forced to testify is discussed. These problems are considered important not only because candor and confidentiality are necessary to make the process work, but also because confidentiality may be the very reason ADR was chosen in certain types of cases (for example, disputes over wills, disputes over trade technology, and customer-supplier disputes). Whether statements or offers made in ADR are admissible in cases involving non-parties to the ADR is considered, and the shortage of legal cases on this issue is noted. Problems posed by discoverability of ADR are delineated, and two examples are provided in which discoverability of settlement negotiations of ADR was at issue. The need for legislation to protect confidentiality in ADR is cited, and three other legal problems relevant to ADR proceedings are identified: the summary enforcement procedures available for arbitrative results not being available for mediated agreements, the liability of mediators for malpractice when a fair result is not achieved, and legal or ethical constraints imposed on attorneys by Section 2.2 of the Code of Professional Responsibility. Finally, suggestions for ensuring confidentiality are offered, and the many facets to confidentiality, including admissibility and discoverability, are addressed.