LAW AND ETHICS OF MEDIATION I:Characteristics of mediation, Confidentiality

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Conflict Management HRM624

Lesson 35

LAW AND ETHICS OF MEDIATION I

Quotation

In civilized life, law floats in a sea of ethics.

Earl Warren

Why is mediation Regulated?

The regulation of mediation can be best understood as a series of efforts designed to protect and preserve

the essence of the process, to ensure its effectiveness, and to ensure that, as it is used, other legal rights and

obligations are not damaged. The more radical wing of the ADR movement argues that the presence of the

invisible veil keeps us from truly realizing the promise of mediation.

· To preserve the essence of mediation

· To ensure the effectiveness of mediation

· To protect other legal rights

Mediation is a legal event. Mediation technique is influenced by psychological considerations and sometimes

resembles psychotherapy. But situation is slowly changing as mediation becomes more widespread and

institutionalized.

Preserving the Essence of Mediation

It is easy to determine whether there is a third-party intermediary involved in a dispute resolution process,

although whether a given intermediary is correct to refer to his or her services as mediation is sometimes

controversial. The second element of the essence of mediation, the need for self determination, has been

the topic of far more controversy among both mediation scholars and policy makers. Mediation is a diverse

process. It can be almost unrecognizable to a colleague, so it can be abused.

Characteristics of mediation:

Following are the characteristics of mediation.

1. A third-party mediator must be involved

2. Mediation is characterized by disputants' self-determination

3. Intermediary involved

4. Little regulation exists to control mediator "truth is advertising"

5. Controversy among both mediation scholars and policymakers

6. Self-determination is regarded as "the fundamental principle of mediation"

7. Participation of Mediator

8. Impartiality and neutrality

9. Truth and advertising and client-informed consent to the process

10. Client self-determination

11. Need for informed consent

12. Distinguishing of mediation from evaluative ADR

13. Preservation of Mediation as a Non-adversarial Process

14. Confidentiality in mediation

Ensuring the effectiveness of mediation

Mediation is also regulated to ensure its effectiveness, however, here also controversy and uncertainty

abound. The most important regulatory issue that springs from the motivation to ensure effectiveness

relates to the confidentiality of mediation. It is the consensus of most mediation scholars and practitioners

that, for mediation to work well, it must be confidential.

Effectiveness in mediation is also promoted through the regulation of mediator credentialing, competence,

and conduct.

1. Effectiveness depends upon personal attitudes

2. Short term goals will promote evaluative mediation

3. Long term goals will promote facilitative mediation

4. Confidentiality: most unsettled area of mediation law

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Conflict Management HRM624

Perspectives on effectiveness: short- vs. long-term and broad vs. narrow

Confidentiality

Enforceability of settlement

Constructing settlement agreement

10.

Good-faith participation

11.

Ensuring competent mediators:

Protecting other Rights:

The third major reason for the regulation of mediation is to protect the rights held by the participants in

mediation and others affected by the process.

1. Due process consideration

2. Safety issues

3. Conflict with other rights

1. Due Process Considerations:

Limitations on coercion in mediation; informal consent; lifting of confidentiality to protect the rights to give

evidence in other proceedings are some of the considerations.

2. Safety Issues:

Mediation in abuse situations is concerned with the safety issues.

3. Conflict with Other Rights:

Confidentiality of mediation involving the government: effects of laws rendering proceedings open to the

public

Legal Issues in Mediation

The need to preserve essential aspects of the mediation process, and to preserve and promote the

effectiveness of mediation, has led to efforts to regulate mediation in a number of areas.

Confidentiality

Most kinds of mediation are held in a confidential setting; that is, secrets revealed or communications made

in mediation can't be shared with others or used in litigation. Confidentiality is invoked because it is

believed that disputants won't feel as free to communicate openly with one another if they believe that what

they say or reveal might be used against them. Moreover the quality of mediation as a cooperative process

could be compromised if disputants believed that communications in mediation would be the subject of

discovery or trial tactics later on. Additionally, confidentiality is needed to preserve the neutrality of the

mediator: disputants participating in mediation need to be reassured that the mediator will not testify against

them later. Early in the mediation movement, there were two principal sources of confidentiality in

mediation: law providing for the inadmissibility of compromise negotiations and specific contracts

specifying that mediation be confidential.

Waiver of Confidentiality

Statutes and court rules, as interpreted by decisional law, provide for waiver of confidentiality in particular

circumstances.

1. Consent of the participants

2. Mediator malpractice or malfeasance claim or defense

3. Protection of mediation process

4. Matter to be resolved was not confidential to begin with

5. Evidence of a crime or child abuse/neglect

6. To uphold the administration of justice (more critical need to provide justice in another case)

7. Confidentiality in conflict with another explicit law

Summary

Mediation can be practiced in a given frame of law. The rules to govern mediation are derived from ethics

which prevail in the pertinent society. Mediation should be practiced with the provisions of law to promote

the essence of mediation, effectiveness of mediation, to protect legal rights, and to promote justice in

society at large.

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