Thursday, May 26, 2011

Mediation Confidentiality Contract Clauses

I’ve blogged before about issues related to confidentiality in settlement negotiations and in mediation here, and here.
Recently the Maryland State Bar Association ADR Section sponsored a ‘Pizza and Professionalism’ panel discussion about “Confidentiality in Mediation...When YOU Get the Subpoena.” Moderated by Cecelia Paizs, with panelists John Bickerman, Roger Wolf and me, the panel discussed various aspects about mediation confidentiality – especially in Maryland which has no statute that provides clear protection for mediator confidentiality.
Because of the lack of a Maryland confidentiality statute, many practitioners provide for confidentiality by contract; this is good practice even if the state had such a statute.
During the panel discussion I promised to post some contract clauses related to confidentiality.
Here are some sample clauses. Not all of these clauses have come from the same agreement, but together I believe they cover many of the issues and concerns discussed during the panel discussion.
All information presented to the Mediator shall be deemed confidential and shall not be disclosed by the Mediator, his firm or by any party participating in this mediation process, except that evidence otherwise admissible shall not be rendered inadmissible because of its use in mediation. In the event the Parties do reach a settlement agreement through the mediation process, the terms of the settlement will be admissible in any court proceedings required to enforce it, unless the Parties agree otherwise.
The Parties, the Mediator and his firm agree that all proceedings in connection with the mediation process, including statements made and documents prepared by any Party, the Mediator, attorney or other participant for use in the mediation process are confidential and privileged and shall not be disclosed during or after the mediation process to any third party not present during the mediation process or in other judicial or administrative process, pending or subsequent to the mediation process or in any document, unless all Parties and the Mediator agree, and shall not be construed for any purpose as an admission against interest or for any other purpose outside of mediation process.
The Parties understand and agree that, as a result of participation by the City of xxx, laws governing the availability of public records will apply to any documents furnished by the City in the mediation process. The City agrees to assert that all offers, promises, or legal opinions (including proposed findings and conclusions) prepared by or provided to the City as part of the mediation process are exempt from disclosure as a public record as work-product prepared exclusively for adversarial administrative proceedings pursuant to (cite to relevant state statute) or such other exemptions as may apply. However, the Parties acknowledge that any factual documents, including but not limited to technical documents or data, historical records, and consultant reports shall be subject to disclosure by the City in accordance with applicable public records law. The mediation process shall be deemed as compromise negotiations for purposes of the Federal Rules of Evidence, with the exceptions as set out above under the confidentiality provisions.
The Parties agree that the Mediator and Press, Potter & Dozier, LLC are not necessary parties in any arbitral or judicial proceeding relating to this mediation process or to the subject matter of this dispute. The Mediator shall not voluntarily testify on behalf of any Party or participate as a consultant or expert in any federal or state judicial or administrative proceeding regarding this case or issue in or relevant to this case or the mediation and the Mediator shall provide notice to all Parties in the event the Mediator receives a request or subpoena to so consult or testify.
The Parties agree that the Mediator and Press, Potter & Dozier, LLC shall not be called as witnesses or experts in any pending or subsequent litigation or arbitration involving these parties and relating to any matter at issue in the mediation process. Moreover, the Mediator and Press, Potter & Dozier, LLC are disqualified as witnesses or experts in any pending or subsequent litigation or arbitration relating to this matter, or any underlying issue raised during the mediation process. The Parties agree not to subpoena the Mediator and Press, Potter & Dozier, LLC with regard to the Mediator’s notes, or any documents submitted to the Mediator. The Parties further agree that if the Mediator is subpoenaed by any party (whether or not a signatory to this Mediation Agreement) the Parties will pay for the Mediator’s time and his expenses to resist testifying and his time if he is compelled to testify.
Mediation sessions shall not be recorded verbatim, nor shall formal minutes of the proceedings be kept. Upon conclusion of the mediation process, whether or not an agreement has been reached, the Mediator shall, prior to or simultaneous with the final billing sent to the Parties, destroy all notes taken regarding the mediation and shall provide a certification that such destruction has occurred. Such a certification shall be a condition precedent to final payment by the Parties.
Each Party may share information from the mediation process with its insurers and its litigation consultants or experts to assist with the mediation and/or any existing or resulting litigation, and the United States may share information from the mediation process among its various departments, agencies, or instrumentalities for any appropriate purpose (including informing decision makers and making recommendations within the Department of Justice and its client agencies concerning settlement with respect to these matters or the case), providing that each insurer, consultant, expert or federal component is shown a copy of this Agreement, is informed of the confidential nature of the information disclosed in the mediation process, and agrees to comply with this Agreement. The United States also reserves the right to provide public notice of any final settlement achieved by, after, or as a result of the mediation process as may be required by law or established government policy, and to publish a press release concerning any final settlement achieved by or after the mediation process.
The confidentiality provisions of this Mediation Agreement shall remain in full force and effect without regard to whether any legal actions or issues arising out of the case are settled or concluded by final judgment or otherwise, and shall survive termination of the other provisions of this Mediation Agreement.
Another resource for those interested in confidentiality in mediation is the Uniform Mediation Act (the UMA) and the accompanying commentary promulgated by the National Conference of Commissioners on Uniform State Laws. It is a rich resource for those interested in statutes that protect mediation confidentiality.
I welcome any feedback, comments or suggestions about these clauses on the UMA.

Friday, May 20, 2011

More about Public Negotiations

My last blog was about a Washington Post article about the lack of competence we see in public negotiations.

F. Peter Phillips who writes the always interesting Business Conflict Management blog has noticed this as well. As he points out, “as formal training in private negotiation increases, the quality of public negotiation has fallen into such disrepair.”

Negotiators of all types are trained, first of all, to listen and to understand interests. Yet, as the Post article and Phillips both point out, listening is the one thing that appears to be missing from the public dialogue. And when have you seen politicians try to accommodate other interests while still addressing their own?

As Phillips asks, why? And is this something to which the ADR practitioners might speak? Well, yes.

A panel discussion at the American Bar Association Dispute Resolution Section 13th Annual Spring Conference asked professional negotiators about poor public perceptions about political negotiations.

According to Phillips, Peter Adler of the Keystone Center asked that people recognize the true nature of the issue:

These are discussions of “public interest,” not private “interests.” It is the exercise of collective power. These talks are reported on the TV. It is not two parents negotiating child custody. Waiting for a moment of consensus in a legislature is like waiting for the exciting bit at a baseball game. It will come, but it will be unexpected and without any impact on the way the game itself is played. That’s why “Town Hall meetings are not a good forum to solve problems.” There is a role for the creative leader in public discourse, just as there is a role for the creative facilitator in the divorce discussion. But importing terms like “interest,” “collaboration” and ”facilitation” from the private sphere to the public one is inartful and displays a lack of sympathy with the process of public policymaking. (Emphasis added).

John Ferrugia, a guest panelist who is a veteran legislative reporter, noted an important distinction: Negotiators have an incentive to reach an agreement, while legislators have an incentive to retain their seats. Negotiators rely on their counterparty to seek shared interests, while legislators rely on their constituencies to get money to be re-elected. Can a legislator afford to break with the party on a budget issue? Is centrism viable when the funders are on the extremes? Is the process of politics rational? (Source: Business Conflict Blog)

Of course the process of politics is not rational. We shouldn’t expect otherwise. Politics is a reflection of us – including, or perhaps mostly – our irrational selves.

The Council of the Dispute Resolution Section adopted a resolution, introduced by Richard Reuben, for consideration by the ABA House of Delegate at the ABA Annual Meeting in August. The Resolution provides:

RESOLVED, that the American Bar Association reaffirms the principle of civility as a foundation for democracy and the rule of law. When dealing with the public as well as with one another, lawyers should set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.

FURTHER RESOLVED, that the American Bar Association urges all lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.

FURTHER RESOLVED, that the American Bar Association urges all government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse in the conduct of political activities and in the administration of the affairs of government.

FURTHER RESOLVED, that the American Bar Association supports federal, state, territorial and local governmental policies, practices, and procedures that promote civility and civil political discourse and that are consistent with the First Amendment, and other federal and state constitutional requirements.

Given that lawyers don’t a reputation for civility, is this not lawyers living in glass houses throwing stones? For example, see my blog Lawyer Jokes.

I wonder if this resolution will make any difference whatsoever.

As my children say, the most interesting political discourse no takes place on the Daily Show with Jon Stewart and Colbert Nation with Stephen Colbert.

Friday, May 13, 2011

Battle over national debt ceiling has negotiation experts shaking their heads

The May 11, 2011 issue of the Washington Post had an interesting article by David A. Fahrenthold that looks at the political negotiations over extending the national debt ceiling.

Published in the Post Style Section, the article says a lot about our culture’s adoption of the ideas in Getting to Yes by Roger Fisher and William Ury.

The article reviews the negotiating styles of politicians and concludes that they are, in a word, amateurs, to wit:

That’s the frustrated conclusion that America’s professional negotiators have reached, after watching Washington’s politicians begin their own negotiation over the national debt ceiling. These professionals are ex-FBI agents, labor mediators, divorce counselors. They have learned the rules that help resolve unsolvable standoffs: Don’t lie to a man on a high ledge. Don’t box yourself in with sweeping threats. Don’t tell your adversary to “act like an adult.”

And it bugs them to see their art practiced this way.

I believe that many of us, observing the posturing and lack of negotiations skills we see between political leaders every day, agree with the main thrust of the article -- that both sides “have no idea what they’re doing.”

This bothers me. My guess is that one of the reasons both parties are held in such low regard is that most of us understand that effective negotiations require a level of professionalism that the politicians don’t often meet. Political leaders have a lot to learn about negotiations strategy. Too bad they don’t seem to be paying attention.

Bill Ury was quoted in the article as saying, “The country deserves better negotiations.”

How true.