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What Did I Promise? The Path from Confidentiality to Conspiracy

What Did I Promise? The Path from Confidentiality to Conspiracy

Source: Just Resolutions, ABA Dispute Resolution Section newsletter
Date: April 2005

Jerry P. Roscoe, Esq.
This article was originally published in Just Resolutions, the Newsletter of the Ameri- can Bar Association Section of Dispute Resolution, Vol. 10, No. 2 (Issue No. 28). April 2005. Copyright 2005, American Bar Association. Reprinted by Permission. By Jerry P . Roscoe It often begins at the beginning, with t h e M e d i a t o r ’s opening statement. While mediators have learned not to blithely promise that “everything you say here is con- ?dential,” many of us still may be writing checks the parties may not be able to cash particularly in the areas of con?dentiality, evidentiary exclusion, and privilege. Following are some of the more poi- gnant phrases of a typical opening state- ment. Let’s parse them to see where the pitfalls lie. Do any sound familiar? Everything said or done in this room stays in the room. Once some- thing is said or done in front of another party, it is dif?cult, if not impossible to limit knowledge or use of that information. There seems to be no rule against either repeating statements heard in mediation or using them as a basis for ?ling discovery, such as a Request for Admissions, based upon information learned in the mediation session. Mediation agreements (as op- posed to Settlement Agreements) wherein parties agree to keep everything learned “con?dential” are generally too broad to be enforced. Federal Rule of Evidence 408 protects against admission of settlement negotia- tions, but excludes discoverable evidence from its protection. Remember also that this rule only applies in the case being negotiated! Parties may be permitted to introduce evidence in collateral cases. Practice tip: Tell the parties in ad- vance that, if they wish to share anything that could possibly compromise their posi- tion, they may be best advised to discuss that information privately with the media- tor prior to disclosure. Many mediators introduce this thought in pre-mediation discussions, thus providing parties an opportunity to begin to assess the impact of non-disclosure on the success of the negotiation. Everything prepared for the pur- pose of mediation is con?dential. Not necessarily! Protection is generally af- forded materials prepared exclusively for and used in mediation. Mere preparation of materials for mediation may not shield them from disclosure. Practice tip: This may be addressed in the mediator’s letter of engagement(s) scheduling letter or discussed during initial contact with the parties. Parties seem to appreciate mediators who counsel them as to the scope and use of materials prepared for mediation. Everything prepared during the course of mediation is con?dential. Under certain circumstances, disclosure of unlawful conduct during a mediation may make parties (and the mediator) witnesses to admission of a misconduct, or worse, a crime. If so, this could trans- form documents into evidence includ- ing a mediator’s notes! Thus enters the specter of conspiracy! While this may seem Orwellian, Title 18, as amended by Sarbanes-Oxley, expands the scope of liability in areas of conspiracy, fraud, false statements, and obstruction of justice suf?ciently to warrant at least familiarity with its relevant provisions. Everything said by a party to the mediator alone will be kept in con?- dence if the party requests that the information be held in con?dence. Many attorney mediators relate that when they are serving as mediators, they are not acting as attorneys thus the rules of profes- sional conduct might not apply. However, the mediator who is also an attorney may face a challenge with regard to disclosures of past misconduct. The mediator is well- advised to review their local rules and decisions on the issues of prior misconduct related during the mediation. Nothing you say in con?dence may be used against you in a court of law. Once again, the attorney mediator may have an obligation to disclose either prior attorney misconduct reported during the mediation or misconduct witnessed during the course of the mediation. No one may be quoted as to what they say in this mediation and have that quote used against them in a subsequent legal proceeding. The mediator may be required to report misconduct unless the court or statute has conferred upon mediation communications the status of legal privilege. This should not be confused with mere inadmissibil- ity. The mediator will not report what is said or done in mediation unless ordered by a court. Which court? The catch here is that other courts than those in the mediator’s venue may obtain juris- diction over the matter and thus be able to order disclosure. Final Practice Tip: Refresh your understanding of the distinction between privilege and exclusion as evidence. In the mediation context, privilege does not exist unless explicitly recognized by the court. Review the Uniform Mediation Act and your applicable Code of Professional Re- sponsibility to determine your practice, if not your obligations, regarding disclosure of prior or intra-mediation misconduct. Those neutrals practicing in several states would be well-advised to note that there is a lack of uniformity provisions re- lated to mediation privilege and con?den- tiality. Federal Rule of Evidence 408 does not afford the protection that parties com- monly assume. Neither Federal Rule 501 nor the 1998 ADR Act creates a privilege for mediation. There are over 250 statutes that deal with mediation con?dentiality. (See UMA Reporter’s Notes to Section 2) In cases of federal jurisdiction, local rules should be checked. JAMS mediator/arbitrator Jerry P . Roscoe is a co-chair of the Health Care and ADR Com- mittee of the ABA DR Section. He also teaches mediation and negotiation as an adjunct professor of law at Georgetown and George Washington University Law Schools. Thanks to Prof. Marjorie Corman Aaron, University of Cincinnati School of Law; Dallas attorney Maxine Aaronson; Charles Carberry of Jones Day Reavis & Pogue; Jay Folberg of the Univer- sity of San Francisco School of Law; Kathryn Keneally and Steven Salch of Fulbright and Jaworski LLP , for their work in this area for the April 2004 DR Section Annual Conference. This article is based upon their work and the presentations at that meeting. What Did I Promise? The Path from Con?dentiality to Conspiracy
The Path from Confidentiality to Conspiracy

This article was originally published in Just Resolutions, the Newsletter of the American Bar Association Section of Dispute Resolution, Vol. 10, No. 2 (Issue No. 28). April 2005. Copyright 2005, American Bar Association. Reprinted by Permission.
By Jerry P. Roscoe

It often begins at the beginning, with the Mediator's opening statement. While mediators have learned not to blithely promise that "everything you say here is confidential," many of us still may be writing checks the parties may not be able to cash particularly in the areas of con.dentiality, evidentiary exclusion, and privilege.

Following are some of the more poignant phrases of a typical opening statement. Let's parse them to see where the pitfalls lie. Do any sound familiar?

Everything said or done in this room stays in the room.
Once something is said or done in front of another party, it is difficult, if not impossible to limit knowledge or use of that information. There seems to be no rule against either repeating statements heard in mediation or using them as a basis for filing discovery, such as a Request for Admissions, based upon information learned in the mediation session. Mediation agreements (as opposed to Settlement Agreements) wherein parties agree to keep everything learned "confidential" are generally too broad to be enforced.

Federal Rule of Evidence 408 protects against admission of settlement negotiations, but excludes discoverable evidence from its protection. Remember also that this rule only applies in the case being negotiated! Parties may be permitted to introduce evidence in collateral cases.

Practice tip: Tell the parties in advance that, if they wish to share anything that could possibly compromise their position, they may be best advised to discuss that information privately with the mediator prior to disclosure. Many mediators introduce this thought in pre-mediation discussions, thus providing parties an opportunity to begin to assess the impact of non-disclosure on the success of the negotiation.

Everything prepared for the purpose of mediation is confidential.
Not necessarily! Protection is generally afforded materials prepared exclusively for and used in mediation. Mere preparation of materials for mediation may not shield them from disclosure.

Practice tip: This may be addressed in the mediator's letter of engagement(s) scheduling letter or discussed during initial contact with the parties. Parties seem to appreciate mediators who counsel them as to the scope and use of materials prepared for mediation.

Everything prepared during the course of mediation is confidential.
Under certain circumstances, disclosure of unlawful conduct during a mediation may make parties (and the mediator) witnesses to admission of a misconduct, or worse, a crime. If so, this could transform documents into evidence including a mediator's notes! Thus enters the specter of conspiracy! While this may seem Orwellian, Title 18, as amended by Sarbanes-Oxley, expands the scope of liability in areas of conspiracy, fraud, false statements, and obstruction of justice sufficiently to warrant at least familiarity with its relevant provisions.

Everything said by a party to the mediator alone will be kept in confidence if the party requests that the information be held in confidence.
Many attorney mediators relate that when they are serving as mediators, they are not acting as attorneys thus the rules of professional conduct might not apply. However, the mediator who is also an attorney may face a challenge with regard to disclosures of past misconduct. The mediator is well-advised to review their local rules and decisions on the issues of prior misconduct related during the mediation.

Nothing you say in confidence may be used against you in a court of law.
Once again, the attorney mediator may have an obligation to disclose either prior attorney misconduct reported during the mediation or misconduct witnessed during the course of the mediation.

No one may be quoted as to what they say in this mediation and have that quote used against them in a subsequent legal proceeding.
The mediator may be required to report misconduct unless the court or statute has conferred upon mediation communications the status of legal privilege. This should not be confused with mere inadmissibility.

The mediator will not report what is said or done in mediation unless ordered by a court.
Which court? The catch here is that other courts than those in the mediator's venue may obtain jurisdiction over the matter and thus be able to order disclosure.

Final Practice Tip: Refresh your understanding of the distinction between privilege and exclusion as evidence. In the mediation context, privilege does not exist unless explicitly recognized by the court. Review the Uniform Mediation Act and your applicable Code of Professional Responsibility to determine your practice, if not your obligations, regarding disclosure of prior or intra-mediation misconduct.

Those neutrals practicing in several states would be well-advised to note that there is a lack of uniformity provisions related to mediation privilege and confidentiality. Federal Rule of Evidence 408 does not afford the protection that parties commonly assume. Neither Federal Rule 501 nor the 1998 ADR Act creates a privilege for mediation. There are over 250 statutes that deal with mediation confidentiality. (See UMA Reporter's Notes to Section 2) In cases of federal jurisdiction, local rules should be checked.


JAMS mediator/arbitrator Jerry P. Roscoe is a co-chair of the Health Care and ADR Committee of the ABA DR Section. He also teaches mediation and negotiation as an adjunct professor of law at Georgetown and George Washington University Law Schools. Thanks to Prof. Marjorie Corman Aaron, University of Cincinnati School of Law; Dallas attorney Maxine Aaronson; Charles Carberry of Jones Day Reavis & Pogue; Jay Folberg of the University of San Francisco School of Law; Kathryn Keneally and Steven Salch of Fulbright and Jaworski LLP, for their work in this area for the April 2004 DR Section Annual Conference. This article is based upon their work and the presentations at that meeting.