The Committee on Mediator Ethical Guidance is frequently asked to address concerns relating to confidentiality in mediation. Consider SODR 2007-1, one of the first inquiries the Committee received about confidentiality in mediation: In the course of litigation, an attorney receives a set of interrogatories directed to his client, a party, calling for all information about a certain subject known to the client and its employees and agents, including its attorneys. A law firm partner of the attorney is a mediator who recently mediated a case involving persons not involved in the described litigation. During the course of that mediation, the attorney-mediator received information that would be responsive to the interrogatories. Must the attorney-mediator disclose the information acquired during the mediation that would be responsive to the interrogatories?
The Committee concluded that absent a separate legal requirement, such as a court order or local law to the contrary, the Model Standards of Conduct for Mediators protected/prevented the mediator from disclosing the information.
Model Standard V(A) provides, “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” The mediator’s duty is straightforward. Since neither of the exceptions -- party consent or a requirement of law -- applies, the mediator must maintain confidentiality.
In two related inquiries, SODR 2008-1 and SODR 2008-2, the Committee considered whether an attorney-mediator has an obligation to advise parties at the outset of a mediation that he or she might subsequently be required to disclose confidential mediation communications. The Committee was asked to consider this in the following hypothetical: After the termination of a mediation, the attorney-mediator in that matter later represents a client who is the subject of interrogatories that call for the disclosure of facts about which the attorney-mediator has knowledge based on his or her service as mediator in the prior matter. Here, the Committee determined that an attorney-mediator does not have an ethical obligation to disclose to parties who are about to participate in a mediation that there is a risk that some time in the future the attorney-mediator may not be entitled to maintain the confidentiality of the statements made in mediation by the participants, unless the mediator can reasonably anticipate the scenario set forth in the hypothetical. The attorney-mediator should, however, be mindful of potential conflicts of interest arising from the subject of the mediation.
The Model Standards, unlike some state codes of ethics, do not create an affirmative duty to describe for parties in a mediation any specific exceptions to confidentiality. The Standards do, however, provide in Standard V(C) that, “A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.” This standard suggests that the mediator has an obligation to consider with the parties their expectations with regard to the scope of confidentiality and any exceptions to confidentiality they may agree are appropriate in that particular case. Standard V(D) confirms this mediator responsibility, noting that, “Depending on the circumstances of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.”
Thus, while the attorney-mediator in the scenario presented has no explicit ethical obligation under the Model Standards to disclose the particular risk described in the hypothetical or to discuss every conceivable scenario in which the expectation of confidentiality may be challenged, the mediator and the parties should consider developing at the outset of a mediation their own confidentiality agreement based on the needs and expectations of the parties and/or on the individual mediator’s standards of practice.
While the Committee concluded that the facts presented by the hypothetical were so attenuated that the attorney-mediator had no obligation to disclose, it did discuss two other sections of the Model Standards and their implications in this situation. The Model Standards support party self-determination throughout the mediation process, including mediator selection. As stated in Standard I(A):
“A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection process, design, participation in or withdrawal from the process, and outcomes.”
The Standards also explicitly require that the mediator promote the integrity of the process by avoiding conflicts of interest. Standard III requires a mediator to avoid involvement with the subject matter of the dispute if it reasonably raises a question of the mediator’s impartiality and also requires the mediator to disclose, as soon as practicable, all actual and potential conflicts of interest. This duty is ongoing such that if a mediator learns of any fact after accepting a mediation that raises a question about a conflict of interest, the mediator must disclose that information and can only proceed with the parties’ consent. If the conflict might reasonably be viewed as undermining the integrity of the mediation, the mediator should withdraw regardless of the parties’ desire or consent.
The Committee determined that the mediator in the hypothetical situation had a duty to disclose any potential or actual conflicts of interest relating to the subject matter of the mediation that he or she reasonably knew before or became aware of during the mediation. If, for example, the attorney-mediator knew there was possibly a related case in the firm that could potentially lead to the need to respond to interrogatories, this should have been disclosed to the parties. Such disclosure would have allowed the parties to choose another mediator who could avoid the potential future conflict of interest. In a circumstance in which there either was no such case in the office or the attorney-mediator did not know about it, there would be no duty to disclose.
Finally, the Committee considered whether the question presented also poses the issue of the application of concurrent standards of professional conduct. The facts of a situation may make an attorney-mediator subject to both a mediator ethics code and to a lawyers’ professional code.
In the case presented, the Committee suggested that the attorney-mediator keep in mind relevant legal ethics provisions that may come into play if the attorney-mediator is ultimately confronted with the ethical dilemma posed by the hypothetical. Relevant ethics provisions include analogs of the following ABA Model Rules of Professional Conduct: (1) Rule 1.7 Conflict of Interest: Current Clients; (2) Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third Party Neutral; (3) Rule 1.16 Declining or Terminating Representation; and (4) Rule 2.4 Lawyer Serving as a Third-Party Neutral.
Kimberly Taylor serves as the COO of JAMS and oversees operations in the United States. Working directly with the president and CEO and leading a team that spans 23 resolution centers nationwide, Ms. Taylor is responsible for the company’s day-to-day operating activities. Ms. Taylor previously served as JAMS associate general counsel. She serves as co-chair of the ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance. She can be contacted at email@example.com.
Roger C. Wolf is law school professor emeritus at the University of Maryland Francis King Carey School of Law and is the founder of C-DRUM, the Law School's Center for Dispute Resolution. A longtime mediator and trainer, he is the past co-chair of the Section's Ethics Committee and is co-chair of the Section’s Committee on Ethical Guidance. He can be reached at firstname.lastname@example.org.
The ABA Section of Dispute Resolution Committee on Mediator Ethical Guidance provides advisory responses to requests for ethical guidance. The committee includes ADR practitioners, academics and leading ADR ethical experts from the public and private sector. The committee accepts inquiries from ABA members and non-members and may also consider an issue on its own initiative. While it may draw on other sources of authority, such as opinions or other guidance issued by state ethics authorities, its focus is on interpreting the Model Standards of Conduct for Mediators (2005) (“Model Standards”) and applying them to the issue presented.
For full versions of the opinion referenced in this column, SODR 2007-1, SODR 2008-1, and SODR 2008-2, visit the Section of Dispute Resolution’s Ethics Resources, available at www.ambar.org/disputeresources.