Confidentiality and the Ethical Standards for Practice in Meditation... reported by Betsy Chessler
Professor Mary B. Culbert is Associate Clinical Professor of Law and Director of the Loyola Law School of Los Angeles Center for Conflict Resolution (CCR). At the 37th Annual SCALL Institute in La Quinta, California, Professor Culbert presented a very interesting program that addressed various issues regarding confidentiality and ethical standards of practice in mediation of disputes.
At the CCR, there are 300-500 cases pending at any given time, handled by 30 staff. Professor Culbert handles EEOC, community, and court referred cases. The CCR specializes in helping the little guy who wants to take on a big corporation, because most attorneys won’t take such cases. The courts, as you might expect, are also delighted to have so many cases removed to the CCR.
Professor Culbert reminded us that conflict is as natural as breathing. Mediators are there to help people have a conversation. If you don’t feel comfortable with the other party, you need a mediator. Mediation can occur between employees and supervisors, husband and wife, professors and students, and so on. (In fact, many universities have ombudsmen to resolve campus conflicts.)
Anything goes in mediation as long as it is kept confidential. Mediation is an art, and the process for resolutions will vary. The mediator allows communications that are completely open, without fear of reprisal. The process should feel very much removed from the feel of litigation; and this difference allows people to have conversations that they couldn’t have before. Transformative mediation is based on empowering parties to solve their own problems. Sometimes separated couples come to CCR and reconcile! It has happened.
Twelve states have adopted the Uniform Mediation Act, including the District of Columbia and Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, Utah, Vermont, and Washington. Under this Act, the mediator has a privileged relationship with the parties.
Not so in California! Instead, California provides in its Evidence Code the types of material that can and cannot be disclosed. However, mediation should be free from the power of subpoena. One of the incentives to mediate is that it is a completely private process. Celebrities prefer mediation for this reason!
California Mediation Confidentiality
The mediator’s promise is not to share information with the outside world AND with the other side without permission. Conversations are in a “lock box” and cannot be disclosed in later civil proceedings. According to California Evidence Code 1115-1128: the mediation discussion and all “writings” (including photos and recordings) are inadmissible. About a dozen California cases discuss confidentiality.
Mediator Standards
There are many national and state standards of practice that have been developed by ADR organizations such as the AAA, ABA, and the Association for Conflict Resolution. There are also the California Dispute Resolution Council’s (CDRC) Standards of Practice . These establish an informal standard of care for mediators.
The only laws adopted in California for mediation are rules of conduct for mediators in court-connected mediation programs for civil cases. These are minimum standards set by the court.
Ethics
Professor Culbert teaches a set of overreaching ethical standards for mediators, but then tells her students they must decide in each case the correct path to follow for that individual dispute.
The standards are as follows:
- Mediators do the least or no harm.
- They are neutral and impartial.
- They disclose conflicts of interest.
- They work for party self-determination.
- Process must be confidential, fair, balanced and voluntary.
- The process must not be coercive.
In California, the mediator must disclose any type of conflict, just as a judge would. Personal, professional, or economic conflicts must all be reported.
Competence of Mediators
Competency means that a mediator meets the reasonable expectation of parties. The court also has its own standards. In Los Angeles County, one must have 30 hours of training, plus 5 mediations of 2 hours each. Approximately 99% of mediators are lawyers. Nevertheless, an attorney acting as mediator cannot provide professional advice during mediation, only personal opinions.
Fees and Advertising
Mediators must engage in truthful advertising and explain fees in advance and in writing.
Discipline
It is very difficult to indict a mediator. The court can reprimand or remove a mediator or require additional training.
Betsy Chessler is a Law Librarian at Morrison & Foerster LLP in San Diego. She is currently Vice President of SANDALL.
