What Is a Confidential Mediation Statement

Make the mediation statement your roadmap for a successful agreement. This is your chance to draw the Ombudsman`s attention to how she can help you resolve the case. Be brief, precise and strategic so that the mediator focuses and is ready to resolve the matter before the session. Proposed comparisons. In an open mediation statement, you may not feel comfortable sharing some ideas about how you think the dispute could be resolved. In a confidential mediation statement, you can offer a variety of suggestions and ask the mediator for advice on which ones might work best with the other party. It also gives the mediator insight into what your client is open to and creates a topic from which to start working. This issue was addressed in an important but unpublished statement in 2002 by a single judge of the Court of Appeals, Justice Cynthia Cohen, in cases involving the Archdiocese of Boston. In Francis Leary a/k/a/ and others v. Father John J. Geoghan et al., a Supreme Court justice, appointed a mediator to testify before the court on whether or not the parties to the dispute had reached an agreement during the mediation. In that judgment, the trial judge stated that confidentiality is a privilege of the parties and not of the mediator. It noted that if it was found that the parties had waived the privilege to testify, either positively or as a by-product of other acts, the mediator might be compelled to testify.

The Ombudsman appealed the judgement to a single judge of the Court of Appeal. This single judge noted that “like mediation laws in some other states, G.L.c. 233, § 23C provide general confidentiality protection for disclosure in court proceedings, without listing exceptions. Moreover, unlike other statutes, G.L. v. 233, at para. 23C, he is silent on whether confidentiality can ever be lifted and, if so, by whom. The single judge further concluded that “whether or not the parties have chosen to preserve the confidentiality of the mediation, G.L. v.

233, § 23C, does not allow a party to compel the mediator to testify if doing so would require him to disclose communications made during the mediation and in relation to the subject matter of the mediation. To compel such testimony, while useful in determining the merits of the dispute between the parties, would be contrary to the clear intent of the law to protect the mediation process and preserve the effectiveness and neutrality of the mediator. See also 47 Mass. Prac., Mediation and Arbitration § 5.2 (2008 ed.) During my time on the bench, I have found confidential mediation statements incredibly useful. They have allowed me to establish a relationship with lawyers, gain their trust and successfully negotiate the resolution of thousands of cases. As a mediator, arbitrator and AAA panel member, that hasn`t changed. If parties prefer to use open mediation statements, this is certainly also useful (see next month`s blog!), and a mediator should never require parties to provide confidential mediation statements; However, I believe that the confidential declaration of mediation can greatly enhance a mediator`s ability to negotiate successful settlements, avoid costly litigation and allow the parties to get on with their lives. One of the most important policy decisions to consider in any mediation is whether the parties should exchange open mediation statements with each other or present confidential mediation statements only to the mediator. Confidential mediation statements can provide a better understanding of the parties` positions, making it easier for the mediator to resolve their dispute.

A good statement of confidential mediation should serve as a roadmap for the mediator and include the following information: The most well-known and widely used rule of evidence when it comes to confidentiality is Federal Evidence Rules 408 and its state equivalents. He says: The weaknesses of your case. In an open mediation statement, a litigant is unlikely to recognize the signs of weakness of his client`s case or the strength of the opponent`s arguments. However, a confidential mediation statement allows you to more freely communicate your client`s weaknesses, concerns, and underlying interests, allowing the mediator to better assess the risks of your case, understand the pressure points of both parties, and develop a more practical negotiation strategy to resolve the dispute. An open mediation statement is generally not appropriate for these conclusions. It should be noted that these rules do not constitute guarantees of confidentiality. Rule 408 regulates what might be admitted into evidence during trial, but does not limit what a party or counsel may say in other contexts, such as a prior statement, arbitration, casual conversation, or newspaper article. Rule 408 applies to hearings in federal courts, but not to state courts or administrative proceedings. Rule 408 does not apply to all information provided during settlement discussions, but only to evidence that someone has provided or offered valuable consideration for compromise or attempted to compromise a claim in order to prove liability for damages or invalidity of the claim or its amount. Rule 408 also contains numerous exceptions and is not an absolute barrier to the introduction of evidence about what happened in mediation. Section 408 does not protect statements made by an ombudsman.

Parties who violate Rule 408 generally face only a judicial reprimand. If written skillfully and strategically, the mediation statement can be an effective opening salvo that increases the chances of success and the solution in mediation! The confidentiality of a mediation process is protected in various ways by the terms of the mediation agreement signed by statute or by law, as in Massachusetts by the Mediator Secrecy Statute, MGL v. 233, p.23C, by various regulations that apply to alternative dispute resolution programs, and by court decisions. As will be seen, it is ultimately the written mediation agreement, drafted by the parties to meet their specific needs, that offers the parties to the dispute the best way to guarantee the confidentiality of the mediation process. Please read our MDRS Mediation Agreement and MDRS Mediation Guidelines. It is also recommended that words such as “confidential mediation communication” or similar titles be added to any correspondence arising from mediation to increase the likelihood that privacy protections will be respected. In very sensitive cases where confidentiality is essential, parties may wish to consider including their confidentiality agreements in a provision that may be approved by a court or in a separate enforceable court order with penalties for non-compliance. For the purposes of this Division, “mediator” means any person who is not a party to a dispute, who enters into a written agreement with the parties to assist in the resolution of their disputes and who has completed at least thirty hours of mediation training and who has four years of professional experience as a mediator or has been accountable to a dispute resolution body that has existed for at least three years. or a person appointed to mediate by a judicial or governmental authority. A brief summary of the relevant facts. Provide details so that the mediator can quickly know the key facts of the case as well as any previous attempts at resolution.

The mediator needs this information to develop strategies to help the parties resolve their dispute. To facilitate the process, I usually recommend that the parties commit to the relevant facts at the outset in order to save time and allow the mediator to focus on the arguments put forward by both parties. Of course, the parties may differ in their interpretation of the critical facts to be assessed by the mediator; However, mediation will proceed much more easily if the basic facts are not questioned.

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