Mediation Confidentiality Law - Research Paper Example

MEDIATION CONFIDENTIALITY Mediation Confidentiality Law Mediation is a process whereby the mediator facilitates talks between aggrieved parties following a dispute. The aim of mediation is to guarantee that the parties reach an amicable pact. It is a process that has gained so much traction in the recent past especially in the resolution of commercial disputes. Mediation is used by many states in America and is getting recognition and being accepted even in finding resolution of international commercial disputes. In California, for instance, the law recognises the fact that communications that occur in the mediation process remain confidential. Benefits of Mediation Mediation has many benefits to the parties involved. For instance, it protects not only the privacy of the involved parties in a dispute but also their confidentiality. According to Kevin (1992), confidentiality is very critical in any legal case; it brings many benefits to both participants in the course of dispute resolution. For instance, turning legal cases to alternative dispute resolution helps in making courts efficient and also reduces the number of cases handled by the courts. Consequently, this ensures satisfaction and raises confidence of the public in the judicial system as matters can be solved efficiently. Also, mediation, unlike other court procedures, allows litigants to have more control over the subject. This is very important because it reduces chances of destroying essential relationships. Mediation is also an essential procedure in the sense that it may lower legal bills of the litigants. According to Forrest (2011), this comes from the fact that mediation takes a relatively short time to resolve cases compared to normal court procedures. Key Statutes in Mediation Confidentiality The Mediation confidentiality law is recognised by the state law of California and is entrenched in sections 1115 through 1127 of the code of evidence (Callahan, 2012). In the section, the court defines the statutory as extensive. The court acknowledges the fact the use of mediation and its subsequent effectiveness falls purely on the candour of the parties involved. Roderick (2008) says that among the reasons for setting up the statute was the need to ensure that candid and informal talks proceeded smoothly with regards to past events. Roderick (2008) further acknowledges the fact that frank exchange is only possible in the mediation process upon the participants’ understanding. Therefore, mediation is possible when what they put forth will not be used for their misery later in other court processes. The Various Aspects of Confidentiality There is a common assumption in California that confidentiality is a privilege. This is not true; privileges can cease in different ways, for example, by statements or conduct that would imply intent to waive the privilege. Also, following the fact that confidentiality of mediation is more an evidentiary exclusion, it is never factored as a privilege in California. Things protected by Confidentiality According to California Law Revision Commission (1997), section 1119 of the confidentiality statute protects two kinds of evidence i.e. from discovery to admissibility. Anything that might have been put forth or any admittance made with the sole aim of, in the progression of, or pursuant to arbitration is protected (Callahan, 2012). In addition, everything that may be written in the mediation process (as defined in section 250) is also under strict protection. In the mediation process, unlike other court processes, confidentiality applies even without a written agreement; however, it crucial for the participants to have an agreement as it may serve other purposes. For instance, in the event that participants fail to reach an amicable agreement in the initial session, the mediation may be postponed. Usually, if communication does not occur within ten days between the aggrieved parties and the mediator, the process is thought to have ended: consequently, confidentiality is also not applicable after those days elapse. A written agreement usually done at the initial stage of mediation, however, will still remain in effect while the parties go on with settlement discussions with the mediator. How Forensic Evidence is protected In mediation, such things as photographs and written statements may provide compelling evidence and, as such are quite persuasive. Section two hundred and fifty of the statute looks at “writings” to include; photographs, written statements and consultants. The California Supreme Court explains that for evidence to be considered as confidential in mediation, it must be determined that it was prepared for that purpose. In accordance with section 250, written statements and photographs qualify as “writings.” On the contrary, actual physical samples do not qualify as “writings” in mediation although their analyses may qualify as “writings.” Issues in Confidentiality within Mediation Law Legal Malpractice There are many issues regarding the conduct of clients’ lawyers in the mediation process. According to California Law Revision Commission (1997), the client is prohibited from testifying in the subsequent litigation with regards to the lawyer’s utterances in the course of the mediation session. The California Supreme Court gave outright protection to the legal representatives that deny clients a chance to testify in a follow-up malpractice case. This is clearly an issue as it breaches the client’s standard of care. The simple fact that the confidentiality provisions are taken as finally add to the vulnerability of the clients to malpractices from lawyers. Limits on Testimony There is an assumption by particular clients that cajoling and enticing a mediator of the strength of their position; the mediator may favour them and appear as a witness in the course of the trial. Following that assumption, some clients become reluctant to confide in a mediator as they think that the mediator may in later stages testify against them. The effect of such assumptions is that they limit the amount of testimony that is given at any given time from the involved parties. It should, however, be clear that the law has a provision that prohibits mediators from testifying against both parties. This is an issue that needs to be clear as it is a block to effective and sound justice. Inadmissible Evidence As per California Law Revision Commission (1997), the confidentiality within mediation law asserts that the evidence obtained before mediation does not lose admissibility just because it was taken into account in the course of the mediation. On the contrary, it prevents any material that was prepared and used as evidence during the mediation session from being used, unless there is consent from the parties involved. Clearly, this is more like application of double standards. It is only logical to think valid evidence cannot lose that quality just based because it was previously used in mediation. Beyond the Courtroom The mediation confidentiality law has precincts beyond which it ceases to apply. According to Roderick (2008), the mediation confidentiality law only applicable in legal proceedings. This is such a significant derailment of the law because anyone can take on to the press and tell them what transpired in the mediation. Thus, the court proceedings do not allow people to discuss the merits or demerits of the case outside court. However, mediation confidentiality is open; consequently, a person can discuss the matters with professional colleagues and friends without fear of consequences. This is an issue that in my view needs to be addressed or maybe the provisions within the state law reconsidered. Family Court Exceptions In the confidentiality of mediation law, there is an issue with regards to mediation of child custody and visitation cases. According to Forrest (2011), most California counties have court rules that allow the mediator to, among other things draft recommendations to the judge. This is done in the event that mediation discussions fail to address all issues pertaining to child custody matters. This, however, contravenes the published appellate decisions. As such, court mediators in such proceedings are designated as “counsellors,” a move that is aimed at preserving the practice of giving admissible recommendations to officials in the family court. Following this controversy, the California Supreme Court issued a ruling requiring that counsellor’s recommendations be given in writing prior to any hearing. Recommendation for Improvement There is a necessity to reform some sections of the governing law of the land. For one, the regime that organizes the permissibility of possessions said or done at all organized alternative dispute resolution (ADR) process (Limbury, 2012). It is unjust that ADR practitioners face a high risk of being asked to produce evidence at ADR process if the process (especially mediation) was done before the court made an order. There is a great need for constancy. There is a tendency in the current system to provide a disincentive to early resolution of disputes. It is time for the state law to be harnessed in a way that it treats all people in ADR equally and to ensure consistency in the confidentiality and admissibility processes. Clearly, there is no rationalization for the numerous schemes that are linked with the acceptability of the matter that occur at an ADR course (Limbury, 2012). Conclusion In conclusion, California is one of the states that is quite protective of the mediation privilege. Even in the cases where there seem to be an unjust result, California courts remain adamant and are not willing to create exceptions to those privileges. As such, a mediator carrying out mediation duties in California relating to the California law is often guaranteed that whatever they say will never be disclosed in a subsequent proceeding. Such confident for a mediator is critical because it may ultimately have a bearing on the way on not only the way the mediator proceeds, but also his effectiveness. It also gives a window of opportunity for participating lawyers the freedom to do whatever they can with little risk of disciplinary consequences. While people may have varied opinions as to whether such freedom for lawyers is good or bad, there can be little doubt that some lawyers will act deviously as they know their behaviours will not be questioned. The mediator, on the other hand, while presiding over case whose substantive law is not straight-forward, must bear in mind, and not be nearly as confident that what they utter will remain secret. The council must equally be knowledgeable that in the absence of proper protection, the risk of careless behaviour will be high and can cause adverse consequences. It must, however, be noted that the protection of a bad lawyer by the mediation privilege was not the ultimate goal of the law but rather a mere side effect. There are fundamental reasons put forward for preserving the confidentiality of the mediation process. For one, it makes the process more effective and regardless of the side one is, preservation of confidentiality allows for more openness in dispute resolution. References California Law Revision Commission (1997) Mediation Confidentiality: Recommendation. New York, NY: CLRC Callahan, R. (2012). Mediation Confidentiality: For California Litigants, WHy Should Mediation COnfidentiality be a Function of the Court in Which the Litigation is Pending? Pepperdine Dispute Resolution Law Journal, 63-96. Forrest S.M (2011) “Confidentiality in Mediation” Retrieved on 18th Oct 2014 from http://callawyer.com/Clstory.cfm?eid=918251&wteid=918251_Confidentiality Kevin G. (1992) “Confidentiality in Mediation: A Moral Reassessment,” J. Dist. Resoln 1(1): 5-41 Limbury, A. L. (2012). Should Mediation be an Evidentiary Black Hole? UNSW Law Journal, 914-928. Roderick M.T (2008) “New California Mediation Confidential Law” Retrieved on 18th Oct 2014 from http://corporate.findlaw.com/business-operations/new-california- mediation-confidential-law.html Read More