Subject – Alternate Dispute Resolution
CONFIDENTIALITY V. PUBLIC INTEREST
SUBMITTED BY: ARVIND SRINIVAS I.D. NO. 1555 3 YEAR , B.A. L L. B. (HONS.) RD
DATE OF SUBMISSION: 5 AUGUST , 2010. TH
IN
MEDIATION
Table of Contents Research Methodology................................. Methodology........................................................ .............................................. ................................................. .......................... ..........4 Introduction....................................... Introduction.............................................................. .............................................. .............................................. ................................................5 .........................5 What is Mediation......................................... Mediation................................................................ .............................................. .............................................. ....................................7 .............7 Origin of mediation.......................................... mediation................................................................. .............................................. ................................................. .......................... ..7 Approaches to mediation......................................... mediation................................................................ .............................................. ............................................9 .....................9 Outcomes of mediation.......................................... mediation................................................................. ................................................................ ......................................... ....9 Importance of Confidentiality in Mediation........................................ Mediation...................................................................... .............................. ...........11 Normative analysis of mediation......................................... mediation................................................................ .............................................. ..............................11 .......11 Mediator-party confidentiality.................. confidentialit y......................................... .............................................. ........................................... ................................ .............12 .12 Party-party confidentiality................. confidentiality........................................ .............................................. .............................................. .........................................13 ..................13 Public Interest v. Confidentiality in Mediation........................................................... Mediation.............................................................................14 ..................14 Modes of protection of confidentiality...................... confidentiality............................................. .............................................. ........................................14 .................14 Exclusion................................ Exclusion....................................................... .............................................. .............................................. ....................................................15 .............................15 Privilege...................................................................................................................................16 Areas of concern....................................... concern.............................................................. .............................................. .............................................. ..................................17 ...........17 Conclusion................................ Conclusion....................................................... .............................................. .............................................. ........................................ .............................. ..............18 .18 Bibliography.................................................................................................................................20
Research Methodology 1. Aim Ai m:
This This pape paperr aims aims to make make a stud study y of and and exami examine ne the the impo importa rtanc ncee of conf confid iden entia tialit lity y for for successful mediation and the limits to which this confidentiality can and should be protected.
2. Scope and Limitations :
The scope of the paper extends to examining the importance of confidentiality in mediation and the dilemma that exists when this confidentiality comes into conflict with public interest. As mediation is most developed in the United States examples from that country have been used.
3. Research Questions:
The following research questions are answered in this paper: 1. What What is medi mediat atio ion? n? 2. What is the the importa importance nce of of confidenti confidentiality ality in mediatio mediation? n? 3. In the the even eventt of a confl conflic ictt betw between een confi confide dent ntia ialit lity y and and publ public ic inter interes est, t, which which one prevails?
4. Data Sources :
Secondary sources of data such as books and articles have been used in the compilation of this paper. All sources of data have been duly acknowledged.
5. Style of Writing :
A uniform and analytical mode of writing has been employed throughout the paper.
6. Mode of Citation :
A uniform and approved mode of citation has been used in this paper.
Introduction Mediation is an alternate form of dispute resolution in which a third party mediator facilitates the settlem settlement ent of issues issues between between two disput disputing ing parties parties though though a proces processs of constr construct uctive ive dialogue. Mediation can be broken down into three different phases. The first phase deals with the decision of the disputing parties to opt for mediation and the third party to agree to act as a mediator mediator.. A number number of factors known as the determinants determinants of mediation, mediation, such as the culture from which the parties originate and the benefit to be obtained from opting for mediation over other forms of dispute resolution, influence the decision of the parties. The third party too is influenced in his decision by these factors. The second phase of mediation deals with the approaches approaches to mediation. mediation. The approaches approaches adopted depend on the determinants determinants of approaches approaches which range from the the environment in which the mediation takes place to the past relationship shared by the disputants and the mediator. Thirdly the outcomes of mediation are specific to the disputants in the form of satisfaction, the mediator in the form of satisfaction and n enhancement of reputation and the third parties who also benefit from the benefits that accrue to the disputing parties.
The importance of confidentiality in mediation can be broken down into two aspects. The first aspect aspect is based based on the relatio relationsh nship ip between between the disput disputing ing parties parties and the mediat mediator or.. It is imperative that the mediator builds up an atmosphere of trust during the mediation. He can do this only if he can assure the parties that any communication between him and the parties and between the parties themselves will remain confidential and not be used in concurrent or subsequent litigation. It is also import that confidentiality be maintained as in the absence of confide confidenti ntialit ality y the partie partiess will will be relucta reluctant nt to divulg divulgee all inform informati ation on fearing fearing that that this this information will be used in later litigation, which ultimately leads to an undesirable decrease in the efficacy of the mediation. The second part of confidentiality is based on the relationship between the disputants. Here, apart from the reasons mentioned above, confidentiality is also important because issues that would normally not be brought out in the open, will be disclosed in an atmo atmosp sphe here re of trus trust, t, whic which h coul could d cont contrib ribut utee to the the part partie iess reach reachin ing g a settl settlem ement ent successfully.
Protection of confidentiality in mediation is ensured through the means of exclusions and privileges. Exclusions primarily exempt communications made during the mediation from
being considered as evidence in subsequent litigation. Federal Rule of Evidence 408, in the United States, is a good example of such an exclusion. While an exclusion deals only with the exemption of information from testimony, a privilege may deal with a wider range of situations such as disclosure of the communications made during the mediation to the press.
Undoubted Undoubtedly ly confidentiality confidentiality is integral integral to the success of mediation. mediation. However there may arise situations where this confidentiality becomes problematic. With the expansion of the use of medi mediat atio ion n as a pref prefer erre red d form form of disp disput utee reso resolu luti tion onss the the ques questi tion onss as to wher wheree this this confidentiality should stop. When the issue of mediation is of a public nature and likely to affect hundreds of people who cannot be present at the mediation, will confidentiality still prevail over public interest. Similarly when the testimony of the mediator is the difference betwee between n a convict conviction ion and an acquit acquittal, tal, will the courts courts still still protect protect the confid confidenti entialit ality y of mediation? Obviously a balance has to be found between the interests of the disputants and that of the public. These questions are sought to be answered in this research paper.
What is Mediation The process of mediation may be defined as the facilitation of interaction by a third party who is designated for this purpose and who in the normal course of events would not have any authority to find a solution to the dispute to be resolved. 1 As a form of dispute resolution, mediation has been employed since times immemorial. Instances of its use have been found in China, Korea, Malaysia, Poland, Azerbaijan, Israel, Norway and Japan. 2 In India the system of
panchayats is an excellent example of the use of mediation for dispute resolution. In the modern era, mediation is used in diverse fields. The most widespread use of mediation is in the field of international relations, labor management issues and family matters.
Origin of mediation Mediation can be broken down into three distinct phases, which are, its origin, the approaches used during the mediation and the outcome of the mediation. The origin of mediation can be found in the decision of two or more disputing parties interacting with the help of a third party in the hope that the relationship between them can be improved in this manner. Different circumstances induce these disputing parties to opt for mediation. These factors are known as the determinants of mediation. Once the parties decide that they have to seek the help of the third party mediator in order to find a solution to their dispute, it is left to the mediator to decide whether he or she wants to provide such help or not. Thus for the process of mediation to take place two basic requirements must be satisfied. Firstly the disputing parties must ask for third party assistance, assistance, in the resolution resolution of the dispute, in the form of a mediator mediator and secondly secondly this mediator must agree to provide such assistance.
The determinants of mediation are in the forms of firstly norms and laws and secondly expected benefits. These two factors are influential in the satisfaction of the two requirements needed for the mediation mediation to begin. begin. Norms are generally generally deeply ingrained ingrained in the culture of the parties. When these norms warrant the use of mediation as the preferred form of dispute resolution, they act as a powerful influence on the parties' decision to opt for mediation. The cultural efficacy theory explains this influence by saying that disputants in cultures with such norms have repeatedly witnessed the resolution of disputes through mediation and hence are
1 2
G.K Kw Kwatra, Arbitration and Alternate Dispute Resolution, (International Trade Centre, New Delhi; 2004), p.41. J. A. Wall, Wall, Jr., Jr., A. Lynn, Lynn, “Mediatio “Mediation: n: A Current Current Review”, Review”, The Journal of Conflict Resolution, Vol. 37, No. 1 (Mar., 1993), p. 160.
comfortable and familiar with mediation.3
Cultures shape decisions not only at the national but also at the community level. Communities in most cases have their own set of norms and laws. Thus the decision of the parties to opt for mediation or not to do so depends on the specific communities to which the disputants belong. An example of this phenomenon is seen in the United States. Many states in that country have adopted laws which provide judges with the power to order the disputing parties to participate in mandatory mediation. In contrast to this, when the norms and laws favor other forms of dispute resolution, unfamiliarity with the process causes the parties not to go for mediation. 4
Apart from the influence wielded by the norms and laws of the culture to which the parties belong to, expected benefits are the other factor which act as an incentive for the disputants to choose mediation to solve their dispute. Third party intervention can have a number of positive effects which the parties see as expected benefits. A mediator might have specialized skills in the area of dispute, his intervention might overcome any stalemates, the relationship between the parties could be kept cordial and the dispute itself could be kept quiet and confidential. These These benefi benefits ts induce induce the parties parties to select select mediati mediation on as their their preferr preferred ed form form of disput disputee resolution. When deciding whether to opt for mediation, the parties carry out a cost benefit analysis. This is done done by comparing the possible possible results of mediation with those of other forms of dispute resolution such as litigation, which generally is slow, expensive and in most cases reaches sub optimal solutions. 5
Coming to the second requirement needed to start mediation, that is the acceptance of the mediator to assist in the resolution of the dispute, it is seen that the same factors that influence the disputants' decision with regard to mediation, also influence the mediator's decision on whether or not to facilitate the dispute resolution. Norms, laws and expected payoffs are the factors instrumental in shaping the third party's decision making process. Personal benefit or in the case of internationa internationall relations, relations, benefit to ones country, country, can be powerful considerations considerations in any such decision making process. From the point of norms in numerous cultures the elders are ar e expected to mediate all disputes, ranging from the basic family level to whole villages and communities communities.. Thus like the disputing disputing parties the third party also accepts to be involved involved in the J. A. A. Wall, Wall, Jr., Jr., J. B. Stark, R. L. Standifer Standifer,, “Mediation: “Mediation: A Current Current Review Review and Theory Theory Development” Development”,, The Vol. 45, No. 3 (Jun., 2001), pp. 376 Journal of Conflict Resolution, Vol. 4 Id . 5 L.G. Terris, Terris, Z. Moaz, Moaz, “Rationa “Rationall Mediation: Mediation: A Theory and and a Test” Test”,, Journal of Peace Research, vol. 42, no. 5, 2005, p. 564 3
mediation on the basis of norms, laws and possible benefits. benefits .6
Approaches to mediation Once the mediation gets going, the mediator has to decide on a specific approach that has to be adop adopted ted duri during ng the the medi mediati ation on.. In this, this, he or she she is influ influen ence ced d by fact factor orss know known n as the the determinants of approaches. There are various kinds of approaches that can be employed. However they can be broadly categorized based on their focus. Three such broad categories exist which focus on the disputants, the relationship between the disputants and the relationship between the disputants and the third party. They may also be classified as facilitative r evaluative. In the former the mediator merely facilitates whereas in the latter the mediator evaluates the situation and expresses an opinion. 7 The approach that is adopted depends on the determinants of approaches. The main determinant is the feasibility of the approach itself which can be determined determined by examining examining the facts and circumstances circumstances of the case. Secondly the envi enviro ronm nmen entt in whic which h the the medi mediat atio ion n is bein being g held held infl influe uence ncess the the choi choice ce of appr approa oach ch.. Sometimes the disputants insist on a certain approach as the use of this approach will maximise the benefit for them. If the third party performs mediation services regularly then the mediator develops his own style and approach depending on his personality and standing in society. The economic feasibility of the approach also has to be examined before its adoption. Lastly the past relationship between the mediator and the parties also influences the approach that is adopted.8
Outcomes of mediation When the approaches are applied, applied, they yield outcomes outcomes for the parties, the mediator mediator and other related parties. The outcome of the mediation depends upon the gravity of the dispute, the bargainin bargaining g power held by each party and the type of issue issue that is being mediated. mediated. Apart Apart from the settlement of the dispute, the primary disputant specific outcome is satisfaction. This satisfaction is present because mediation is less taxing both emotionally and financially when compared to litigation. In addition to this the solutions are also tailor made to suit the needs of the disputants. For mediators the outcome is in the form of satisfaction, remuneration and a move up in the hierarchies of society. For third parties the outcomes are incidental to those of the parties.9 6 7 8 9
Supr Supraa not notee 3 at at p.3 p.377 77.. Bernstein et al ., ., Handbook of Arbitration Practice (Sweet and Maxwell, London; 1998), p.585. Supr Supraa not notee 3 at p. 378 378 Supr Supraa not notee 3 at p.38 p.380 0
Importance of Confidentiality in Mediation As mediation gains importance as an alternate form of dispute resolution, the importance of confidentiality to the process of mediation and the extent to which confidentiality can be maintained with regard to the information divulged by the disputants, need to be defined. The need to protect both mediator-party and party-party communications and to grant the mediator a testim testimoni onial al privil privilege ege has been recogni recognized zed since since the last last centur century y in the United United States States.. Historically, communications made during the mediation process have been granted protection through statutes, especially in disputes regarding labour and family matters. As the expansion of the employment of mediation for the resolution of disputes took place more and more statutes afforded protection to these communications, for example, in the resolution of small criminal issue
The protection accorded by these statutes is principally in the form of two separate privileges. The first privilege deals with the sanctity of any communication made during the mediation by exempting the same from the compulsory processes of litigation. The second privilege is with respect respect to the immuni immunity ty grante granted d to the mediat mediator or from from testify testifying ing during during any subseque subsequent nt litigation. Checks and balances are imposed on these privileges to retain the integrity of mediation and to protect third party interests. Thus various statutes grant these privileges in different degrees. However, the important point to note here is that however limited these privileges might be they are still immensely important for successful mediation. 10
Normative analysis of mediation Though the process of mediation has been described in the previous chapter, it is imperative that mediation and the role of the mediator be analyzed here, normatively, to form a foundation for the analysis analysis of the importance of confidential confidentiality ity to the process of mediation. mediation. A normative normative view of mediation will automatically lead us to the answer that is sought with respect to the essentiality of confidentiality in mediation. In its essence, mediation can be said to be a contractarian process11. This contractarian process of mediation aims to achieve the twin goals of dispute settlement through effective negotiation and the structuring of future relationships. Since the essence of mediation is that of two disputing parties exercising their right to settle the dispute though negotiation, the process of mediation clearly differs from that of adjudication as 10 Anonymous, Anonymous, “Protecting “Protecting Confidentiali Confidentiality ty in Mediation” Mediation”,, Harvard Law Review, Vol. 98, No. 2 (Dec., 1984), p.441 11 Id.
the parties enter into the dispute settlement voluntarily and unlike in adjudication retain control over both the direction and the outcome of the process of dispute resolution.
Facilitation is the principal function of the mediator, unlike in the process of adjudication in which the judge decides the outcome of the dispute. No preordained rules exist apart from those agreed upon by the parties. The facilitatory functions of the mediator are primarily with regard to the identification of issues existing between the parties, recognizing possible areas of agreement and convincing both the parties to accommodate the other party's interests 12. As the parties are not restricted restricte d by the strict adherence to legal issues in the courts, other hidden issues which in most cases prove to be important causes of the dispute, are discovered. Thus at an optima optimall level, level, mediati mediation on can convert convert conflict conflict into into a constr construct uctive ive proces processs and at its very very minima minimall levels levels mediati mediations ons provid provides es the parties parties with with an opport opportuni unity ty to preven preventt existi existing ng relationships from deteriorating to the point of no return, which is seen in most cases which are solved using the processes of adjudication. adjudication .13
Mediator-party confidentiality Now that a normative view of mediation and the role of the mediator has been taken a definition of the importance of confidentiality to mediation can be laid down, while keeping the normative normative view in mind. The mediator's mediator's role as seen before is merely facilitatory facilitatory and any form of coercion is absolutely out of the question. To compensate for this the mediator has to issues issues promises promises of confidentialit confidentiality y. Though the mediator mediator might be helped in his endeavors by numerous other factors such as the force of his personality, his stature in society and the need of the parties to conduct the mediation mediation in a successful successful manner, manner, ensuring ensuring confidentiality confidentiality is the only method by which the mediator can fully assess the possibilities of successful resolution . In order to make such an assessment , the mediator needs to be apprised of all the motives, intentions, positions and interests of the disputing parties. The degree of efficiency that can be brought about in the process of ascertaining the motives, intentions, positions and interests of the parties, reaches optimal level only when the parties are convinced that strict confidentiality will be maintained throughout and after the mediation.
Neutrality Neutrality is an attribute that any mediator should possess. possess. In order to achieve achieve this neutrality neutrality the privilege of not testifying in subsequent litigation, with regard to the communications 12 C. J. Greenhouse, Greenhouse, “Mediation: A Comparative Comparative Approach”, Man, New Series, Vol. 20, No. 1 (Mar., 1985), p. 96 13 Supra Supra note note 10 at p.442 p.442.
between him and the parties to the dispute, should be recognized. There are two situations when this privilege would apply. Firstly when protection of the mediator's interest in neutrality is warranted and secondly when the party's expectations need to be upheld. The rationale behind behind protecting protecting the image of the mediator as a neutral party is that this image is vital to the creation of an atmosphere of trust required for successful mediation. By according to the mediator the privilege of not testifying, the image of the neutrality of the mediator will be strengthened due to the assurance that the mediator will not be an adversary in subsequent litigation which in turn leads to the parties believing more strongly in the integrity of the mediation process.14
Party-party Party-party confidentiality confidentiality Apart from the need for an honest and frank relationship between the mediator and the parties, there is an equally important need for such a relationship to exist between the parties Mere shuttle diplomacy cannot form the basis for fruitful mediation. Mediation requires that the disputing parties meet at one place and thrash out the issues out of which the dispute has arisen. In the absence of confidentiality, it is well nigh impossible for the mediator to generate the atmosphere of trust required for the parties to abandon their reluctance to confide in each other. other. In turn, this reluctance reluctance will lead to any form of agreement becoming impossible. impossible. Thus for effective mediation to take place it is imperative that the privilege to not testify with regard to the communication exchanged by the parties, be accorded to them. 15
The preceding paragraphs point out the need for confidentiality in mediation. The question that arises now is with respect to what happens when this need for confidentiality comes into conflict with any form of public interest. Ideally there should be a clear demarcation as to where the need and importance of confidentiality stop and the importance of upholding public interest starts. The existence of such a demarcation, or the possibility of it in case of its non existence, is examined in the next chapter.
14 Supra Supra note note 10 at p.444 p.444.. 15 K. K. Kovach Kovach,, Mediation Principles and Practice, (West Publishing Co, St. Paul, Minnesota; 1994) p.143
Public Interest v. v. Confidentiality in Mediation From the previous chapter it can be easily inferred that confidentiality carries a high degree of importance importance in the process of mediation. The reasons for this are that confidentiality confidentiality builds builds up an atmosphere of trust which facilitates the full disclosure of issues without the fear of them being used adversely in subsequent litigation. However what happens when the very same confidentiality poses serious problems. There are instances, which become more and more common with the spread of mediation as a preferred method of dispute resolution, where the assurance of confidentiality in mediation becomes problematic. Examples of such instances are when when the partie partiess misuse misuse this this confid confident entiali iality ty to put forwar forward d litiga litigatio tion, n, when when there there is no regulation of the mediator's conduct and when the issue of the mediation is such that it affects a large number of people who have no connection whatsoever with the mediation. 16
The third example, which is an instance where the outcome of the mediation will affect a number number of people people not related to the mediation, mediation, is what concerns us here. The public nature of the issue being resolved in the mediation poses the question as to whether public interest or confidentiality take precedence. For example what happens when the mediation is between the Government and a company whose activities have adversely affected the environment, hence affecting hundreds of people who cannot be present at the mediation. The answer to this dilem dilemma ma lies lies in find findin ing g a balan balance ce betw between een publ public ic inte interes rest. t. This This balan balance ce will will in turn turn manufacture a demarcation where the importance of confidentiality is outweighed by the need to protect public interest. This demarcation by necessity has to be dynamic in nature. Where the dispute is essentially private in nature, for example in divorce proceedings, the need for confidentiality must necessarily outweigh the need for disclosure of the substance of the mediation. On the other hand when the mediation falls into the public domain, for example in labour matters, the need for disclosure must take precedence.
Modes of protection of confidentiality confidentiality From a layman's perspective, there are two interpretations of confidentiality possible. Firstly it may be interpreted as something secret and which will not be known to persons outside the mediation. The second possible common interpretation may be that the information divulged in
16 Id.
a mediation is confidential only with respect to court proceedings and can be revealed outside these proceedings. A via media of sorts is also another interpretation in which only those persons who are related to and directly affected by the mediation are made privy to the information that is divulged in the course of the mediation. Form a legal perspective there are two aspects to confidentiality and mediation. These two aspects can be termed as exclusion and privilege. These two aspects have often not been distinguished between by both lawyers and courts but will be examined but have to be examined separately for a clear understanding of the issue.
Exclusion17 To study an exclusion in general, Rule 408 of the Federal Rules of Evidence can be taken as an example. Though the rule covers all settlement mechanisms, it needs to be examined here only from the point of view of mediation. The exclusion provided under this rule is evidentiary in nature. The rule provides that an offer of compromise is not admissible to prove prove liability for or invalidity of the claim or its amount. It also provides that evidence of conduct or statements made in compromise negotiations is likewise not admissible. What Rule 408 does not specify is whether the information disclosed during mediation can be discussed with institutions such as the media.
Application of this rule is, however, limited as it does not extend the exclusion to all statements made during the process. Though this limitation exists courts tend to extend the rule to all statements made, thus extending the scope of the rule itself. The rationale behind this extension is that if limits were placed on the types of statements hat would be exempt from disclosure during during subse subseque quent nt litigati litigation, on, then there there would would be no incent incentive ive for the parties parties to divulg divulgee info informa rmati tion on that that woul would d fall fall outs outsid idee the the exem exempt ptio ion n whic which h woul would d ultim ultimate ately ly lead lead to an undesirable decrease in the efficacy of the mediation process.
Practically Practically it is not advisable to rely only on an exclusion exclusion such as that provided provided by Rule 408. Courts in the United States have construed the rule narrowly by using a rule known as the relevancy rule. Under this rule, evidence of a proposed compromise is excluded because it is generally considered not to be reliable evidence of the value of the offeror's claim. 18 Exclusions similar to the one contained in this rule protect only statements that are made to prove the 17 Supra Supra note note 15 at p.147 p.147 18 Supra Supra note note 10 at p.449 p.449
veracity veracity of claims made by the parties. parties. Statements Statements which are made incidental incidental to these are not covered by the scope of the exclusion. They are not contingent to the claims made and if the mediator interacts with the parties separately and these interactions are exclusively confidential then, the statements made are not exempt. Exclusions, such as the one made in Rule 408, only prohibit the use of statements made during mediation in subsequent or concurrent litigation. Though all parties to the mediation are prevented from testifying, disbursement of information in other circumstances is not prohibited by the exclusion.
Privilege19 Coming to the second aspect of confidentiality, which is privilege, it can be seen that unlike an exclusion a privilege extends to all situations and is aimed at preventing a specific individual from revealing information conveyed during the mediation. Thus, even if legally a privilege operate operatess to exclude exclude evidence evidence from from trial trial or discov discovery ery,, it can operate operate in numero numerous us other other circumstances. Incidentals of the mediation, such as records and minutes, may also come under the the purv purvie iew w of the the priv privil ilege ege.. The The ratio rationa nale le unde underly rlyin ing g any any priv privil ilege ege,, is to prot protect ect any any relationship based on trust by by recognising the legal right to non disclosure of information. Privileges originated in common law but now have largely been codified.
A test, commonly known as the Wigmore test, is employed by the courts while determining the veracity of a claim for privilege against disclosure. This is a four part test. Firstly the test requires that the communications must originate in confidence that they will not be disclosed. Seco Second ndly ly,, the the elem elemen entt of conf confide ident ntial iality ity must must be esse essent ntial ial to the the full full and and sati satisf sfac acto tory ry maintenance of the relationship between the parties. Thirdly the relationship must be such that it is desirable that it be carefully nurtured and lastly the harm done to the relationship by the disclosure of information must outweigh the benefit to be availed through the correct disposal of litigation.20
The question here is whether whether the relationship relationship between the disputants disputants and the mediator mediator satisfy satisfy the requirements of the test. The first requirement of the test is easily satisfied as all mediators claim that the proceedings that they conduct are confidential. The second requirement too can be said to be satisfied as it is obvious that the parties will reveal all information to the mediator if they are assured of the confidentiality of the process. Assuming that it is desirable to resolve disputes by mediation the third requirement too is satisfied. The fourth requirement contains 19 Supra Supra note note 15 at p. 149. 149. 20 Supra Supra note note 15 at p.150 p.150..
the essence of the problem that is faced when determining the extent to which protection should be accorded to the communications made to the mediator by the parties. The general approach by courts, especially in the U.S., is to find a balance between public interest and confidentiality of these communications on a case to case basis.
Areas of concern As media mediati tion on has has not not reach reached ed the the stag stagee where where it can be comp compare ared d to a docto doctorr patie patient nt relationship or a client lawyer relationship, many questions as to the nature of the privilege to be granted remain unanswered. unanswered. The extent of the privilege is a major area of concern concern21. There are instances where this privilege may lead to a serious miscarriage of justice. For example the mediator's testimony can be the difference between the conviction and acquittal of an accused. There may exist two solutions to this quandary. The first solution would be to formulate a qualifying test which would basically involve a cost benefit analysis on the part of the courts. A second possible solution could be to make confidentiality conditional upon the success of the mediation. This not only gives the disputants an added incentive to arrive at a settlement but also ensures that there is no miscarriage of justice in subsequent litigation.
21 Supra Supra note note 15 at p. 156. 156.
Conclusion The aim of this research paper was to examine the importance of confidentiality for successful mediation and to determine the order of precedence in a situation where the interests of the disputing parties served through the maintenance of confidentiality comes into conflict with any form of public public intere interest. st. To achieve achieve this this aim the resear research ch paper paper,, in its first first chapte chapterr, examined the process of mediation itself. On doing so it was found that mediation is basically a form of dispute resolution where a third party mediator facilitates the resolution of the dispute through a process of constructive interaction.
It was also found that the parties opt for mediation due to a variety of factors known as the determinants of mediation which range from the culture to which the parties belong to the benefits of choosing mediation over more taxing forms of dispute resolution. The approaches adopted during mediation depend on the determinants of approaches such as the general and economic feasibility of the approach and the type of issue that is being mediated upon. Ultimately the approaches lead to an outcome for the parties in the form of settlement and satisfaction, for the mediator in the form of satisfaction and growth in reputation and for other related parties in the form of incidental benefits.
The second chapter of the research paper focused on the importance of confidentiality to the process of mediation. It was found that confidentiality is integral to carry out mediation successfully as it forms an atmosphere of trust between the mediator and the parties and between the parties themselves. It also eliminates the fear that any information divulged during the mediation will be used in subsequent litigation. This ultimately leads to the complete disclosure of the issues, facts and circumstances of the case which in turn leads to the achievement of optimal levels of efficacy in the mediation.
The modes and extent of protection of confidentiality were examined in the third chapter. It was found that confidentiality is protected though exclusions, mostly evidentiary in nature, and privileges, which cover numerous other situations as well. The core issue of the research paper was reached in this chapter with an examination of these modes of protection. In conclusion, it was found that in most cases where the private interest of the individuals conflicted with the interests of people who could not be at the mediation, a balance had to be sought in each case
depe depend ndin ing g on the the facts facts of the the case case.. Anot Anothe herr solu solutio tion n coul could d be to make make conf confid iden enti tiali ality ty contingent on the success of the mediation which would also act as an added incentive for settlement.
Bibliography kimberlee k kovac, mediation principles and practice west publishing co st. Paul Minnesota 1994.
