I am happy to report that last month’s 2016 Northwest Dispute Resolution Conference was a resounding success.
Personal highlights included an excellent primer on elder mediation featuring Zena Zumeta, an inspiring presentation by representatives of Ireland’s Kennedy Institute Workplace Mediation Research Group, and the always eloquent Nina Meierding.
In addition, Randy Kiser led an interactive session on attorney and mediator ethics that I found refreshingly engaging and thought-provoking. One of questions on which Randy invited comment implicated mediation confidentiality. I was struck – not for the first time – at what appears to be a misconception about the applicability of privilege and confidentiality under the Uniform Mediation Act (UMA).
The Uniform Mediation Act
The UMA was adopted in Washington in 2005, and codified at Chapter 7.07 RCW. It is fundamentally a privilege statute, and was created in order to unify a number of previously existing mediation privilege laws.
A quick refresher may be in order here: You will recall that privilege provides protection against the use of documents and communications in judicial proceedings, arbitrations, or legislative hearings. Confidentiality is a much broader concept, which protects against all outside disclosure.
Many mediators and attorneys appear to believe that the UMA provides both privilege and confidentiality by default. It does not.
The UMA states that “[e]xcept as otherwise provided in RCW 7.07.050, a mediation communication is privileged as provided in subsection (2) of this section and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by RCW 7.07.040.” (RCW 7.07.030.)
The UMA goes on to outline the exceptions to privilege, who can assert the privilege, and how privilege can be waived or precluded.
In other words, privilege applies automatically to all mediation communications, with limited exceptions.
The UMA is largely silent with respect to confidentiality, however. It provides only that, “[u]nless subject to chapter 42.30 RCW [the open public meetings act], mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state.” (RCW 7.07.070.)
As Prof. Alan Kirtley points out in his User’s Guide to Washington’s Uniform Mediation Act, “[t]he UMA outlines the specific content of the mediation privilege in great detail. In contrast, confidentiality is governed by the agreement of the parties in each mediation.”
Unlike privilege, confidentiality is not automatic under the UMA. It applies only by agreement of the parties. The UMA does not prevent parties from shouting from the rooftops everything they learned in mediation.
What’s In Your Agreement to Mediate?
So how does this affect you? First, rest assured that the mediator is ethically required to maintain confidentiality regardless of the UMA or the specific provisions contained in the Agreement to Mediate.
However, not all Agreements to Mediate are created equal. Some contain both privilege and confidentiality clauses. Some speak to privilege, but are silent as to confidentiality. And some simply defer to the UMA – which does not include confidentiality.
My standard Agreement to Mediate now specifically spells out privilege as well as confidentiality. I believe that confidentiality is essential to the parties' ability to be candid with me as their mediator, as well as with each other, especially if there is to be any potential for joint sessions. In addition, depending on the circumstances of the mediation, confidentiality may be mandated by other applicable rules, such as the Washington federal courts' CR 39.1, the state courts' Special Proceedings Rules, and the EEOC's mediation rules.
Make an Informed Decision
Whether you are an attorney, a mediator, or a party to a mediation, I encourage you to review any Agreement to Mediate with the specifics of the case in mind, in order to make an informed decision as to whether it provides necessary and/or sufficient safeguards with respect to confidentiality.