Van Winkle: Confidentiality: Elegance of the Uniform Mediation Act

There was universal consensus when mediation was introduced in the early 1990s that mediations should be “confidential.” The ADR rules adopted in Indiana and most other states, however, failed to set forth clear standards and guidelines for courts and mediation participants faced with issues of confidentiality of mediation communications.

The lack of clarity resulted from the dual nature of the confidentiality. One component addressed the issue of admissibility of mediation communications in legal proceedings, “admissibility in court,” while the other component addressed “out of court disclosures” of mediation conduct or communications.

Indiana’s ADR Rules addressed the “admissibility in court” component by providing that mediations were to be considered settlement negotiations and therefore subject to Evidence Rule 408, and addressed “out of court disclosures” by simply declaring mediation to be a “confidential process.”

Presumably recognizing this duality, the Indiana Supreme Court amended Rule 2.11, dividing it into two sections: “Confidentiality’’ and “Admissibility.’’ The Admissibility section, however, simply repeats that mediations are to be subject to Evidence Rule 408, thereby requiring trial courts to fit the round pegs of multifaceted and varied mediation conduct and communications into the square hole of Evidence Rule 408. Evidence Rule 408 was not drafted to be applicable to a dynamic process such as mediation.

Similarly, beyond simply stating that mediations were confidential, ADR Rule 2.11 provides no guidance in addressing breaches of mediation confidentiality by parties, lawyers or mediators making “out of court disclosures.”Privilege approach to ‘admissibility in court’ issues

Approved and recommended for enactment in August of 2001 and adopted by 12 states and the District of Columbia, the genius of the Uniform Mediation Act is that restrictions on the admissibility of mediation communications are founded not on Evidence Rule 408, but on principles of privilege.

The reporters stated in the comments of Section 4 of the UMA: “The Drafters ultimately settled on the use of the privilege structure, the primary means by which communications are protected at law, an approach that is narrowly tailored to satisfy the legitimate interests and expectations of participants in mediation, the mediation process, and the larger system of justice in which it operates.”

Section 4 of the UMA provides generally that defined mediation communications are privileged and not subject to discovery or admissible in evidence in a legal proceeding. UMA Section 6 then provides that certain types of mediation communications are excluded from the broad privilege. The types of communications not privileged include, among others, signed settlement agreements and statements offered to prove or dispute a claim of misconduct of a mediation participant. Further, the drafters of the UMA understood that there would be instances where equities would suggest that evidence of what was done or said in a mediation should be allowed into evidence. The policy and process rationales for the mediation confidentiality were so critical, however, that the drafters of the UMA wanted to ensure that such occasions were limited and that procedural safeguards were in place. Accordingly, Section 6(B) of the UMA provides that no evidence of mediation communications should be excepted from the privilege until and unless an in-camera hearing is conducted, and the moving party demonstrates that the evidence is not otherwise available and that the need for the evidence substantially outweighs the interest in protecting the confidentiality.

It is submitted that the privilege approach of the UMA to the analysis of admissibility of evidence offers clear and concise guidelines as to and is superior to the “settlement discussion” and Evidence Rule 408 approach of the Indiana ADR Rule.

‘Out of court disclosures’ of mediation communications

While the UMA and the Indiana ADR Rules differ in the approach to “admissibility in court” issues, the approach of both to “out of court disclosures” of mediation communications is similar in substantive result. As indicated above, Indiana ADR Rule 2.11 in the section entitled “Confidentiality,” addressing “out of court disclosures” of communications, states simply that mediation sessions “shall be confidential” with no detail or guidance as to the limits, scope and application of the restriction. The UMA addresses “out of court disclosures” of communications by specifically not addressing them. Section 8 of the UMA provides that “mediation communications are confidential to the extent agreed by the parties or provided by other law or rule” of the applicable jurisdiction. The drafters of the UMA concluded that as to “admissibility in court” issues, specific rules of privilege regarding admissibility of evidence were appropriate, in part because parties need clarity and uniformity and also because they cannot by contract agree to keep evidence from the courts. As to “out of court disclosures” of communications, however, a hands-off approach was adopted. The reporters stated in the comments to Section 8: “By contrast [to ‘admissibility in court’ issues], uniformity is not necessary or even appropriate with regard to the disclosure of mediation communications outside of proceedings.”

The UMA recognized that issues of nondisclosure could vary from case to case, with disclosure appropriate in some cases but not others. The reporters stated further in the comments to UMA Section 8: “These decisions are best left to the good judgment of the parties, to decide what is appropriate under the unique facts and circumstances of their disputes … . Such confidentiality agreements are common in law, and are enforceable in Courts.”

The critical takeaway for lawyers and mediators in Indiana and most jurisdictions is that counsel should consider separate confidentiality agreements covering “out of court disclosures” of mediation communications, especially, if not primarily, in those situations in which the potential for harm from disclosures is substantial. Although the Indiana ADR Rules do not cover private confidentiality agreements, breach of such agreements could be argued to give rise to sanctions under ADR Rule 2.10. It should be noted that private confidentiality agreements are not required or necessary in all cases, and thousands of mediations have been conducted successfully in Indiana since 1992 in which no such agreements were in effect. In those cases in which a separate confidentiality agreement is indicated, the drafting of same is probably the practice of law and a task for counsel and not for mediators.

In summary, regarding “admissibility in court” issues, Indiana could address the lack of clarity as to the admissibility by adopting the UMA in whole or, alternatively, by incorporating the privileged-based evidence exclusionary approach in place of the Evidence Rule 408 approach.

Finally, regarding “out of court disclosures” of mediation communications, counsel should be cognizant of the limitations of the ADR Rules and consider on a case-by-case basis whether private supplemental confidentiality agreements should be executed.•

John Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding of and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.