Bar News - October 18, 2017
Alternative Dispute Resolution: Mediation Proceedings: Cloaked in Confidence?
By: Chris Candon and David McGrath
More than 80 percent of mediated disputes settle. One of the reasons mediation works so well is that participants rely on and benefit from the confidential nature of the process.
Confidentiality promotes settlement discussions through an open sharing of information. Without confidentiality, parties may fear that information gained during or arising out of the mediation will later be exploited or used in court. Are parties and their counsel right in their belief that such information will be regarded as sacrosanct and absolutely protected from disclosure?
Problems and questions arise. Suppose, for example, that parties to a civil dispute in New Hampshire mediated (unsuccessfully) the matter before suit was filed. Further, assume that during litigation one party sought production of a relevant document that the other party shared during mediation. Suppose also that the document did not appear during production and subsequent efforts to obtain the document without involving the court failed. May the party seeking production of that document alert the court that she knows it exists because she saw it during the mediation?
Or, more simply, may a party use information from the mediation he believes demonstrates that the parties reached a settlement? Might the mediator be subpoenaed to testify about whether he or she believed at the time of the mediation that the parties reached a binding agreement on all material terms?
In New Hampshire, the state courts have developed different mediation programs, and different rules, so the answer to these questions may depend on which court rules apply or, if the mediation was not tethered to a pending court action, to what confidentially rules the parties agreed.
Each of the courts has established guidelines and/or rules that treat as confidential the information shared during mediation. Under Supreme Court Rule 12-A(11), “mediation proceedings and information relating to those proceedings shall be confidential.” The rule further provides that “[s]tatements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. Mediation proceedings under this rule are deemed settlement conferences consistent with the Rules of Evidence.”
The rule prohibits parties from introducing into evidence, in any subsequent proceeding, “the fact that there was a mediation or any other material concerning the conduct of the mediation except as required by the Rules of Professional Conduct or the [ABA Model Standards of Conduct for Mediators].” The Standards of Conduct provide, in relevant part: “…If the parties to mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.” Additionally, those Standards instruct: “A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.”
Similarly, under Superior Court Rule 32 (Inadmissibility of Alternative Dispute Resolution Proceedings), “ADR proceedings and information relating to those proceedings shall be confidential unless otherwise agreed in writing by all parties and all counsel.” Like the Supreme Court rule, “Statements made and documents prepared by a party, attorney, or other participant in aid of such proceeding shall be privileged and shall not be disclosed to any court or arbitrator or construed for any purpose as an admission against interest. All ADR proceedings are deemed settlement conferences consistent with the Superior Court Rules and Rules of Evidence.” The Superior Court rule explicitly recognizes, however, that the fact and the terms of any settlement agreement “may be admissible in a further proceeding to enforce same.”
The New Hampshire Circuit Court – Family Division – does not have a specific rule governing confidentiality in mediation. However, family mediators certified pursuant to NH RSA 328-C:9 are bound by those statutory rules, including that, “[n]o certified family mediator shall be subpoenaed by any court of competent jurisdiction in this state to disclose any information received from any client unless the privilege is waived by all parties to the family mediation case.”
The New Hampshire Circuit Court District Division – Small Claims Actions – does have an applicable governing rule. Rule 4.12 (d) provides that “[a]ny communication made during the mediation which relates to the controversy mediated, whether made to the mediator or a party, or to any other person present at the mediation is confidential. Information, evidence or the admission of any party shall not be disclosed or used in any subsequent proceeding.”
It is clear that the answers to the questions posed above are situation-dependent. The simplest and safest way to proceed is for the parties to develop a customized confidentiality provision establishing ground rules governing disclosure of information shared during and arising out of the mediation. It is best that the mediator assume responsibility for ensuring that this occurs.
The ABA Model Standards of Conduct for Mediators requires mediators to set the framework for the treatment of confidential information in mediation: “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,” and those same Standards specifically permit parties to “make their own rules with respect to confidentiality.”
Christopher Candon is a shareholder at Sheehan Phinney Bass & Green. He represents debtors, creditors, purchasers, landlords and trustees.
David McGrath is president of Sheehan Phinney and a certified mediator who serves in that role often for the state and federal courts, the NH Commission for Human Rights, and private parties. He is president-elect of the NH Bar Association.