Mediation and Arbitration as a Civil Alternative to the Criminal Justice System - An Overview and Legal Analysis (From Confidentiality in Mediation, P 1-11, Lawrence Freedman, et al, eds. - See NCJ-99740)

• NCJ Number: 99741
• Author(s): P R Rice
• Date Published: Unknown
• Length: 11 pages
• Sale Source: American Bar Assoc
• Language: English
• Country: United States of America

Annotation

This paper considers two issues regarding confidentiality of mediation sessions: the subsequent use in litigation of information generated in the negotiation sessions and the degree to which mediation records are open to public inspection.

Abstract

The evidentiary rule giving limited privileged status to offers of compromise has some use in protecting the confidentiality of mediation sessions, since mediation is an attempt to reach a compromise without litigation. This rule has little practical value in protecting mediation confidentiality in jurisdictions where only the offer to settle is inadmissible. In such jurisdictions, all statements of fact made in mediation negotiations are admissible. Even broader application of this rule protects only incriminating statements regarding the conduct in question. Other mediation statements are admissible. The right of public access to mediation records is subject to a balancing test which determines whether disclosure would cause a harm greater than the benefit of revelation. This is a judgmental decision that often turns on the particular facts of a case, with outcomes varying from case to case and judge to judge. Complete protection for mediation sessions and records can be assured only through legislation that absolutely forbids the disclosure and use of mediation information outside the settlement process. A total of 295 footnotes are provided.