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 Confidentiality

 

 


Uniform Mediation Act opening statement,  (Prepared for the 2001 Minnesota State Bar Association Annual ADR Institute, this "tongue-in-cheek" sample of a mediator's opening statement shows the difficulty of conveying the Act's complexity to mediation consumers. NOTE: The video begins with the fictional assertion that Minnesota has adopted the Uniform Mediation Act; this was for video purposes only; the Act has not yet been adopted in Minnesota.  

Uniform Mediation Act video



State v. Williams, 877 A.2d 1258 (N.J. 2005) (affirming assertion of mediation privilege to prevent mediator's testimony sought to support self-defense claim in assault case because state interest in protecting mediation confidentiality was not outweighed by defendant's need for the evidence where: 1) the mediator's testimony lacked reliability because the "mediator's description of the [mediation] session gives the overall impression of bedlam" and the mediator's post-mediation interest in the case, including attendance at trial after being notified of the trial date by defendant, raised concerns about mediator neutrality; and 2) the defendant was able to introduce other evidence supporting his self-defense claim). 

State video



Rojas v. Los Angeles County Superior Ct., 93 P.3d 260 (Cal. 2004) (affirming denial of tenants' motions to compel production of material produced by owners and builders in connection with mediation held in prior litigation, concluding that state mediation privilege not only protects substance of the negotiations and communications in furtherance of mediation, but also "raw evidence" exchanged at the mediation, when the evidence was compiled specifically for use in the mediation process). 

Quote from the Court:"[I]n making its recommendation regarding mediation confidentiality, the [California Law Revision] Commission specifically considered the discoverability of both expert reports and photographs and drafted its proposed confidentiality provisions to preclude discovery of such reports and photographs if they were 'prepared for the purpose of, in the course of, or pursuant to, a mediation.' [citation omitted]. These materials also show that the Commission chose language expressly designed to give a mediation participant who takes a photograph for purpose of the mediation 'control over whether it is used' in subsequent litigation, even where 'another photo' cannot be taken because, for example, 'a building has been razed or an injury has healed.'" 

Rojas video



Murray v. Talmage, 151 P.3d 49 (Mont. 2006) (granting new trial to plaintiff noteholder in airplane security agreement dispute, based on improper admission of defendant debtor's testimony about what a mediator told the debtor regarding allegedly false representations made by the noteholder in a caucus, because the statements were inadmissible hearsay and highly prejudicial given that no witness other than the mediator could offer first-hand evidence about what was said). 

   Murray Video



Angelella v. Pittston Township, No. 3:06-CV-00120, 2007 WL 2688724 (M.D. a. Sept. 11, 2007) (rejecting plaintiff's allegation of First Amendment retaliation based on defendants' disclosing the date of a confidential mediation and discussing the underlying case on a TV news show, where the use of mediation and its date is a matter of public record, and the interest of the public in receiving information from defendants as public officials outweighs the interest of the plaintiff to be free from unwanted publicity).  

   Angelella Video