CAN CONGRESSIONAL GRIDLOCK BE RESOLVED THROUGH MEDIATION?

The American Bar Association Section of Dispute Resolution announced the winner of the 2013 Boskey Dispute Resolution Essay competition. Sarah Gonski, a Harvard Law student, won the competition with her essay entitled “Easing Gridlock in the United States Congress Through Mediation: Letting Our Cities and States Teach Us Lessons On Getting Along.” 

The essay suggests that Congressional gridlock can be reduced by following the lead of several states and local governments by using mediators to mediate policy and legislative discussions, similar to the Negotiated Rulemaking Act (often called reg neg). Reg Neg was enacted to to encourage agencies to use negotiated rulemaking when it enhances the informal rulemaking process. (5 U.S.C § 561). 

The idea behind reg neg was set out in 1982 by Phillip Harter, an administrative law expert who developed the reg neg idea in a law review article, proposing negotiation as a means of alleviating the "malaise" that hindered the existing federal rulemaking process. See Harter, Philip J., Negotiating Regulations: A Cure for Malaise, Georgetown Law Journal, vol. 71, 1982 

Ms. Gonski’s essay sets forth some examples of successful uses of mediated legislative and policy negotiations by states and cities and the short and sad history of the few attempts to get Congress to establish a mediation office in Congress. She suggests that because of the institutional barriers in establishing a new agency, the Federal Mediation and Conciliation Service (FMCS), an existing federal agency that already provides mediation services in labor and employment disputes, could serve as home for legislative mediation.

I was directly involved in developing the legislation that authorizes FMCS to mediate reg neg and other federal sector policy issues by adding language to insure that the FMCS was specifically authorized to assist agencies by furnishing conveners, facilitators, and training in negotiated rulemaking. (See the Negotiated Rulemaking Act of 1990, reauthorized in 1996 and incorporated into the Administrative Procedure Act at 5 U.S.C. §§ 568 (b)). 

The need for mediation on the Hill is obvious. Gridlock is not good for anyone. 

While many issues will remain gridlocked because elections are the only way to resolve major public questions such as our budget priorities, not all legislation pending on the Hill is subject to those political pressures. If the appropriate stakeholders are involved in the negotiations over regulatory and other substantive issues, if the significant stakeholders on all sides of an issue can agree, then Members of Congress will not block the legislation. 

This would allow for Congress to actually conduct much of the business of the public, while, if they wish, continue to play their electoral/political games on the large (mostly budget-related) issues. 

Mediation on the Hill will not solve all issues and certainly will not eliminate the split between red and blue partisans. However, placing legislative/policy mediators in the FMCS and authorizing them to mediate legislative issues for Congress could result in better, less partisan legislation. 

This is a worthwhile goal.

Fourth Circuit Affirms Ashley District Court Decision

In a much anticipated decision, the United States Court of Appeals for the 4^th Circuit finally issued a decision in the PCS Nitrogen v Ashley II of Charleston, 2013 U.S. App. LEXIS 6815 (4^th Cir. 4/4/13) case.

The decision, however, did not provide the clarity that many were hoping for about the controversial decision by the District Court that the purchaser of the property, Ashley II of Charleston, did not qualify as a Bona Fide Prospective Purchaser (BFPP) and receive exemption from liability because it had indemnified a responsible party and, therefore, had an improper “affiliation” with that party.   

Larry Schnapf’s always illuminating blog, Business Environmental Law and Transactional Support, has a full discussion of the ruling and many of the other issues in the case here.

I served as a mediator for the parties to assist them in resolving the allocation issues and settle the case before litigation. I will not comment about the many issues in the case or the 4^th Circuit decision – except to point out that, given the “much ado about nothing” results, as Larry described the decision, the parties could have resolved the case without litigation. Instead, no party “won” much and all parties lost something.

Certainly the cost of litigation could have funded some if not all of the costs of a negotiated settlement. 

Federal Agencies Told to Use ADR Techniques to Resolve Environmental Issues

Federal agencies have yet again been directed to use Alternative Dispute Resolution (ADR) techniques to resolve disputes.  This time the Acting Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality have directed relevant departments and agencies to

“increase the appropriate and effective use of third-party assisted environmental collaboration as well as environmental conflict resolution to resolve problems and conflicts that arise in the context of environmental, public lands, or natural resources issues, including matters related to energy, transportation, and water and land management. See Memorandum on Environmental Conflict Resolution.

Of course this is not the first time the White House has encouraged the use of ADR techniques in the federal government. For example, in 1998 President Clinton ordered agencies and departments to take steps to promote greater use of ADR techniques to resolve disputes and to negotiate regulations See Memorandum for Heads of Executive Department and Agencies

The memo sets out the use of ADR techniques to address environmental matters and directs federal agencies to use neutral facilitation to settle conflicts in issues related to energy, transportation and water and land management issues.

The memo applies to all executive branch agencies with regard to each agency’s enabling legislation, the National Environmental Policy Act (NEPA) and other laws aimed at managing and conserving the environment, natural resources and public lands. The complete memo is here.

Information about other relevant federal environmental ADR resources can be found at the Department of Justice web site the Department of Interior Office of Collaborative Action and Dispute Resolution web site and the EPA Conflict Prevention and Resolution Center site.

The National Hockey League Negotiations: Will Mediation Make a Difference?

As the NHL lockout reaches its 10^th week, it is hard from the outside to see any progress. Both the All-Star game and the Winter Classic have been cancelled and the two sides seem just as far apart as they were three months ago.

But one recent development which should delight hockey fans and ADR professionals alike is that the owners and players have finally agreed to mediation. Both sides have agreed that ongoing negotiations will be conducted under the auspices of mediators from the Federal Mediation and Conciliation Service. 

Although this may not seem like a huge development it is a step in the right direction. The owners and players union have been negotiating for months to no avail. There is hope that with the assistance of the mediator they may begin to make some progress.

Some collective bargaining disputes are very contentious; both parties play “hardball” to get the best deal for their side. They often, as here, resort to lockouts or strikes. Both tactics are designed to put economic pressure on the other party. The problem is that such tactics force the parties into ‘win-lose’ scenarios in part because the high cost of applying economic pressure compels parties to justify the costs of the pressure to their own stakeholders by ‘winning.’

This results in both sides finding it difficult to properly assess the short- and longer-term costs associated with their hardball tactics. To justify the costs and defend their actions to their own stakeholders, the owners and players engage in positional bargaining rather than thinking creatively and seeking solutions. This may be one explanation of why mediation has a lower success rate in collective bargaining disputes than in other arenas; the recent NBA and NFL lockouts are prime examples.

But even if mediation is not successful in the NHL dispute, agreeing to mediation shows that both sides are interested in being seen by their stakeholders and the public as reasonable and willing to negotiate. It shows that the parties are aware of the costs and risks of alienating their own stakeholders. The desire to be seen as reasonable may allow space for the parties, with the assistance of a skilled mediator, to engage in a serious conversation about the issues separating them.

Both sides would be wise to keep the costs of a failure to achieve a settlement in the forefront as they enter into mediation. As the mediators most assuredly will point out many times and in different ways, the costs of not settling will be high, probably higher than the costs of a settlement and will unquestionably end in a “lose-lose” situation. 

Absent settlement, the consequences are likely to be union decertification; litigation; the loss of yet another hockey season; disaffected arena owners and local businesses, subjection to the mercy of judges and, possibly, the permanent loss of hockey’s fan base, without whom, there is no sport.

This is a situation we’ll be following closely. Hopefully both sides will see the merit of mediation and can follow the precedents set by baseball  and other collective bargaining negotiations that have benefited from mediation.

Prepared with Assistance from Michael Ciccarone

Maryland Mediation Confidentiality Act: Invoking the Magic Words

The Maryland legislature recently passed the Maryland Mediation Confidentiality Act  that took effect on October 1, 2012. It created a new subtitle 18 of Article 3, Courts and Judicial Proceedings of the Annotated Code of Maryland. 

The Act requires mediators to certify, in writing, “that the mediator has read and, consistent with state law, will abide by the Maryland Standard of Conduct for mediators…” for the confidentiality protections to apply (See Article 3-1802 (A) (2))

The provision in the Act requiring mediators to certify adherence to ethical standards means that the statutory confidentiality protections can be lost if the mediator fails to so certify, in writing.  In essence the parties, not the mediator, are punished by a mediator’s failure to invoke the magic words. They can lose the confidentially protection in the Act, often the sine qua non of mediation.

Mediators in Maryland must be aware of with this statute because it affects our practice; failure to follow the Act could result in parties losing the confidentiality provisions of the statute and expose the mediator to liability.

It is not hard to imagine that a party, having lost the confidentiality protection because of the mediator, could be pretty unhappy.  Enough to sue the mediator.

Here is a brief summary of some other important provisions of the statute.

With certain exceptions, the Act applies to cases in which the parties have agreed in writing that the Act applies or when they are required to mediate by law, except in court-referred cases under Title 17 of the Maryland Rules of Procedure.

However, the Maryland act does not apply to:

·        Maryland Court-annexed mediation conducted under Title 17 of the Maryland Rules;
·        Collective bargaining disputes;
·        Actions to enforce agreements to arbitrate under common law and the various Arbitration Acts;
·        Lien foreclosure mediation under Maryland Rule 14-209.1;
·        Certain parental matters under Maryland Rules 2-541; 2-542, 2-543, or 9-205.2;  
·        Mediation cases conducted by a judge who might rule based on the dispute; and 

·        Cases in which the parties and the mediator agree in advance in writing to exclude all or parts of mediation communication from the application of the statute.       

  

The Act also provides that signed agreements between the parties are not confidential unless the parties agree otherwise in writing. 

Section 3-1804 (B) of the Act sets our specific exceptions to the confidentiality standard. Those are:

·        A reasonable belief that the disclosure is necessary to prevent serious bodily harm or death;
·        To assert or defend against allegations of mediator misconduct or negligence or attorney professional misconduct or malpractice; or
·        To deal with allegations that, because of fraud, duress, or misrepresentation (emphasis added), a contract arising out of a mediation should be rescinded or damages should be awarded.

Finally, Section 3-1804 (C) has a general exception to the confidentiality provisions in the Act that allows a court to order mediation communications disclosed:

“…only to the extent that the court determines that the disclosure is necessary to prevent an injustice or harm to the public interest that is of sufficient magnitude in the particular case to outweigh the integrity of mediation.”

This, ‘prevent an injustice’ provision to allows the courts to act, when necessary, to protect threats to the public health, to address rare cases of potential denial of civil due process and even to protect a criminal defendant's constitutional rights. Absent such a general exception, it is possible that the statute would allow an injustice in the name of protecting mediation confidentiality. For an example of how a statute written to absolutely prohibit disclosure can result in such injustices, see my blog posts here and here 

Mediators Now Targets of Internet Scams: A Cautionary Tale

The internet is a great tool for all legal professionals, including mediators. Between the information available online and the ease in sharing information, it is almost impossible to imagine a world without the internet.

The bad news, however, is that the internet also increases the ease with which internet scammers can communicate their malice.  We all have seen how common internet scams have become. Internet scams cost businesses a great deal of money and frustration; it is essential to know what to look for to avoid these traps.

Mediators are now well enough established in business to become targets of scams.

We recently learned of a scam going around, targeting mediators in particular.

Here is a cautionary tale. 

The scam involves two alleged companies (in this particular scam, Barr Holdings and Arrow Electronics) who are alleged to be involved in a commercial dispute and request the help of a mediator. If the mediator agrees to help, a mediation contract is sent to the mediator with the signature of both company presidents. Here are the initial email exchanges, copied verbatim:

How are you today? We would like to thank you for your response to our inquiry for legal services. On behalf of Barr Holdings Limited, we are one of the UK's leading design and construction companies, specializing in the design and construction of sports stadia and arenas as well as large scale leisure, commercial, and retail projects.

However, We wish to inform you that we would be needing your mediation help to assist us with a breach of contract matter and also retrieve funds owed to our company. We ordered goods from Arrow Electronics, Inc. and was asked to make a 50% down payment for goods to be delivered to us and that we did and up till date no goods were delivered. We asked for a refund and they made a part payment and after that no other payment was made. We seek your help to help us collect these funds owed to our company amicably as we do not wish to go any further with the said transaction. We have made several attempts in the past to collect these funds which all ended negatively. We are aware that a conflict search would need to be done.

Here is the name of our supplier for your conflict check of interest-

Arrow Electronics, Inc., 7067 Columbia Gateway Drive, Suite 170 Columbia, MD 21046

Attached to this email you will find attached copy of contract, email correspondence and proof of payment for your perusal. We are prepared to pay a reasonable retainer fee for this service as soon as our board gets to review the terms of your engagement. So please have that sent to my attention via email if this is a case you are willing to handle.

What we require from you is to mediate the dispute and collect the funds peacefully without litigation [emphasis added]. We look forward to your prompt response. We wanted to also inform you that the said funds owed to us has caused a great strain on our company's operational capital and we want this issue to be resolved quickly. We would like to know a few things about your firm and also how you intend to handle this dispute

Then the mediator is sent an email claiming that the two sides have come to an agreement and one party will send a cashier’s check to the mediator to deposit and hold in trust on behalf of the other party.

On behalf of Barr Holdings Limited we have decided to retain your services after our review of your terms and attached herewith is a copy of the signed agreement. Due to your establishment as our mediator in the United States we have been able to yield a positive result.

Furthermore, we had talks with our contact and brought the possibility of mediation to his notice as we informed him of our correspondence with your service. He informed us that some Payment will be effected on or before 8th November 2012.

This is a positive breakthrough for me as this development will eventually reduce time and cost for all parties involved. However I do not intend to introduce any legal pressure unless the deadline of 8th November 2012.

Contract is breached. I do hope you understand my position as i intend to introduce litigation as a last resort.

I instructed that further correspondence including payment be made via our mediator. Please confirm name and mailing address check payments is to be made out on so we can forward it to him at once. It is also my thinking that your engagement fee be deducted as soon as funds are received by you and the balance held in trust pending further instruction.

I await your urgent acknowledgment and requested details as time is of the essence thank you.”

After the mediator receives the check – supposedly to pay a portion of the money owed that was in dispute -- the party sending the check asks the mediator to wire a portion of the funds to a creditor of the party. A wire transfer cannot be undone. Once the money is sent, it is gone.

In the scam, of course, the cashier’s check is fraudulent, and the mediator is now responsible for the money sent to the creditor. Unlike wire transfers, counterfeit cashier checks are not good until the issuing bank actually pays. So a wire transfer irrevocably removes money from the account and the fraudulent cashier’s check is not finally payable – even if the money initially appears in an account -- until after it has cleared by the issuing bank, which can take days, often longer. Thus, in the scam, the mediator is exposed to losing all of the money sent via wire transfer.  Here is the email exchange from the scammer trying to close the deal.

 How are you doing today??

Please do proceed with the swift wire transfer to our creditors as instructed yesterday. Today is the last date giving to us by our creditor to remit payment to them as promised. I Hope you understand how important this transaction mean to us because we don't want our company to be sued. if they file a law suit against us it will bring a bad reputation to our company and we will also loose our business relationship with our creditor. Due to my daughter condition am leaving the offices to know how she doing so keep me updated once the transfer is made this morning your time. I strongly believe you can handle the transaction ASAP.

Await your acknowledgment of instructions and wire confirmation slip thank you.”

This is an all-too-common situation. Mediators and attorneys must be on the lookout for scams.  Fortunately in this case the mediator sensed there was something ‘fishy’ and did not bite.  

Be careful.

Here are some signs that you might be the target of a scam

• Does the email have poor grammar, spelling errors or strange vernacular in general? A large majority of scams come from outside the U.S. and generally do not write in English very well and often use translation websites. 

• Have you received emails or heard from both sides individually? Most scams are the work of one person who usually speaks for the other side. If you are only hearing from one party, there is a good chance it is part of a scam. 

• Has it developed quickly, or have the two sides come to an agreement without your help? This is usually part of scam. Whoever is part of the scam is trying to get the money from you without you even realizing what is happening.  

• Did you receive a call from a location that does not correspond with either party? The mediator and target of this scam was receiving calls from Naples, Florida, a home to neither of the parties involved. This should be another sign that something fishy is going on.

For more information on this particular scam and for more examples of how scammers contact you, go to LawPro's Avoid A Claim blog. You can also report if you have been the target of a suspected fraud and see tips on how to prevent fraud.

Assisted by Michael Ciccarone

Maryland Court of Appeals Adopts New Rules Changing Title 17 – Alternative Dispute Resolution

On Nov. 1, 2012 the Court of Appeals of Maryland adopted a rules order including changes to Title 17, governing the provision of Alternative Dispute Resolution (ADR) services in all court ordered cases in Maryland. 

In addition, the rules order changed Title 9  Family Law, including how ADR services are provided by the Maryland courts in family cases.

The rules will go into effect on January 1, 2013. The full text of a PDF file of the rules order is here. 

Title 17 begins on page 55 and Title 9 begins on page 44 of the document.  The ADR Section of the Maryland State Bar Association played a significant role in shaping much of Title 17. Anyone providing ADR services to the Circuit Courts of Maryland should be sure to review the new rule.   

Federal Agencies Directed to Use Conflict Resolution to Resolve Environmental Issues

Federal agencies have been directed yet again to use Alternative Dispute Resolution (ADR) techniques to resolve disputes.  This time the Acting Director of the Office of Management and Budget and the Chair of the Council on Environmental Quality have directed relevant departments and agencies to

“increase the appropriate and effective use of third-party assisted environmental collaboration as well as environmental conflict resolution to resolve problems and conflicts that arise in the context of environmental, public lands, or natural resources issues, including matters related to energy, transportation, and water and land management. See Memorandum on Environmental Conflict Resolution 

This is not the first time the White House has encouraged federal agencies to use ADR techniques. For example, in 1998 President Clinton ordered agencies and departments to take steps to promote greater use of ADR techniques to resolve disputes and to negotiate regulations. See Memorandum for Heads of Executive Departments and Agencies

The latest memorandum requires that agencies use ADR techniques when appropriate to develop regulations and policy, resolve land management disputes and resolve enforcement issues related to water and land management, energy and transportation issues.

The memo applies to the executive branch agencies’ enabling legislation, the National Environmental Policy Act (NEPA) and other laws aimed at managing and conserving the environment, natural resources and public lands.  The complete memo is here.

Information about some of the relevant federal environmental ADR resources can be found at the Department of Justice website the EPA Conflict Prevention and Resolution Center website and the Department of Interior Office of Collaborative Action and Dispute Resolution website.

California Confidentiality Statute Allows Clients to be Defrauded if Done During Mediation

Does this heading get your attention?  Because it is true, even if the statute allowing this was not designed to produce this outcome.

The strict California mediation confidentiality statute allows this outcome, according to the California Court of Appeals, the second such decision upholding the absolute ban on disclosure of any information if it originated in mediation. 

In two cases with egregious facts the California courts have held that the mediation confidentiality statute means what it states – that no evidence of any statement, act or writing prepared for a mediation is admissible in any subsequent court proceeding. Period. End of story.

I’ve blogged about this before, reporting on a decision by the California Supreme Court in Cassel v.Superior Court,  in which the Court held that private communications between an attorney and client that take place during mediation are confidential – even when the client waives the attorney-client privilege and requests disclosure.

The most recent case is Hadley et al. v. The Cochran Firm Cal. Court of Appeal, 2nd Appellate Dist., 8th Div., 2012  in which the California Court of Appeals held that the statute applied even when an attorney stapled an executed signature page from a confidentiality agreement to a supposed settlement agreement to which the clients had not agreed, thereby settling the case and dismissing their claims without the clients’ authority or knowledge.  Wow, talk about alleged malpractice and fraud.

The trial court dismissed the claims in response to a motion in limine to exclude the evidence of the alleged fraud and malpractice because this all happened during a mediation. The court was apparently following precedent from the Cassel decision by the California Supreme Court and a reading of the plain language of the statute.  The appellate court upheld the decision, holding that the mediation confidentiality statute compelled such a result.

This is no way to encourage mediation or engender client confidence in the mediation process.  These decisions clearly show the dangers of unintended consequences. When the mediation community drafted and supported a statute with an absolute bar, and opposed the Uniform Mediation Act, which takes a far more nuanced approach, I am certain there was no thought given to results such as this.

Use and Benefits of Alternative Dispute Resolution

A Statistical Summary Prepared by the Department of Justice

If anyone needs statistical evidence that ADR saves money and reduces litigation, here it is. Last year the government saved over $12 million in litigation and discovery expenses, over 14,600 days of attorney time, and avoided over 1,200 months of litigation by the use of alternative dispute resolution (ADR) techniques, according to the U.S. Department of Justice. These savings were achieved primarily through the use of mediation at a cost of under $2 million. Six dollars saved for every one dollar spent is pretty good cost/benefit ratio, if you ask me.

This data is being reported by the U.S. Department of Justice Office of Dispute Resolution (ODR). The ODR was set up to develop Justice Department policy regarding the use of ADR.

These are just the government’s cost savings and, according to the ODR, are “based on detailed case reports submitted by the lead trial counsel in all cases in which a private neutral conducted an ADR process in Department litigation across the country.”

Also note that in 2011 nearly 75% of the voluntary ADR proceedings (cases in which the government and other parties agreed to ADR without being ordered by a court) were “resolved” (i.e., settled). About 50% of cases ordered into ADR, by contrast, were resolved – still a significant percentage but perhaps an indication of why voluntary ADR works so well.

This chart is pretty strong evidence of the cost-saving benefits of ADR.

Category	TOTALS
	2011	2010	2009	2008	2007
Success Rates for ADR
Voluntary ADR Proceedings	73% Resolved	80% Resolved	78% Resolved	79% Resolved	69% Resolved
Court-Ordered Proceedings	53% Resolved	46% Resolved	42% Resolved	51% Resolved	50% Resolved
Cases in Which ADR Achieved Benefits	86%	73%	83%	No Data	No Data
Quantified Benefits of ADR
Litigation or Discovery Expenses Saved	$12,185,750	$11,662,500	$5,940,287	$3,387,750	$3,001,000
Days of Attorney/Staff Time Saved	14,656 Days	12,260 Days	5,829 Days	23,010 Days	2,797 Days
Months of Litigation Avoided	1,231 Months	930 Months	849 Months	661 Months	429 Months
DOJ Support ADR
Expenditures for Mediation Services	$1,931,900	$1,547,874	$1,141,103	$1,362,320	$1,049,891
Number of Case Authorized for ADR Funding	470	718	528	522	505

Source: U.S. Department of Justice, Office of Dispute Resolution

Mediator Testimony

A recent New Jersey case is yet another example of why parties need to be careful when they pick a mediator.

And why there should be higher standards of mediator training – perhaps especially for judges.

Information about this case comes from the always interesting Business Conflict Management Blog by Peter Phillips in New Jersey.

According to Phillips’ blog, the New Jersey Superior Court Appellate Division recently approved for publication a decision in which a party to a mediation successfully sought to enforce a settlement agreement that was not fully reduced to writing. For purposes of this blog, the issue of whether the agreement was evidenced in writing is not particularly relevant.

What is relevant is that the plaintiff seeking enforcement of an alleged agreement, “supported the motion with a certification of their attorney and the mediator,” who also was deposed and testified at the hearing. A retired (and unnamed) New Jersey Superior Court Judge was the mediator.

As Phillips blogs, “(t)he trial judge on the motion found his former colleague’s testimony “highly credible.” Imagine that!”

The mediator submitted an affidavit and testified in support of a party’s motion. A mediator. Even though, as the court pointed out that both statute and rule, state that a mediator “may not disclose any mediation communication to anyone other than a participant in the mediation session,” and referred to that bar as “an evidentiary privilege.” The court justified the decision to allow the mediator’s affidavit and testimony because the privilege can be waived by the parties.

Even though the plaintiff unilaterally breached the confidentiality rule and statute, the court allowed (and relied on) the mediator’s evidence, perhaps because the defendants deposed the mediator. The trial judge ruled that confidentiality had been waived. But we don’t have any information about why or how.

Phillips succinctly sets out the concerns about this case:

What was the movant doing attaching a certification of the mediator to their opening papers, in open breach of statutory confidentiality obligations? What on earth was the former judge-cum-mediator doing executing a certification for that purpose? What was the trial judge doing putting himself in a position to rule on his former colleague’s credibility? Or the admissibility of his testimony as set forth in his certification? Was the opponent to the motion required not to depose the prospective witness and then argue no waiver?

The judge/mediator by allowing a party unilaterally to attach his certification and opinion about whether there was agreement in this case appears to have breached two of the cardinal rules of ethical mediation to not breach the confidentiality of the mediation and to not breach the duty of neutrality.

As Phillips writes, this case is a reminder a Mediation 101 lesson: Never Never Never Violate Mediation Confidentiality.

Frontiers of Mediator Confidentiality: Can You Reveal That an Offer Was Made?

Here is a link to an interesting discussion about the Frontiers of Mediator Confidentiality posted by Peter Phillips in his always interesting Business Conflict Blog.

As Phillips points out, nothing is as simple as it looks. He sets out an interesting hypothetical about mediator confidentiality and posits three questions.

Visit the blog and answer the three questions. My answers are yes to question 1 and no to question 3 (the easy questions) and in response to question 2 the mediator can send a copy of the letter faxed to plaintiff’s counsel. Plaintiff has a right to see that letter.

Read the hypothetical and answer the questions yourself.