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.

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