NCJ Number
100421
Journal
Mediation Quarterly Issue: 9 Dated: (September 1985) Pages: 85-108
Date Published
1985
Length
24 pages
Annotation
The legal precedents, justifications for, and costs and benefits of a confidentiality privilege in the mediator-client relationship are examined.
Abstract
On the basis of a consequentionalist method of balancing the conflict between the need to know and the right to privacy, it is argued that such a confidentiality privilege is justified. Further, in all instances, the courts have upheld the privilege, and New York grants it statutorily. The mediator-client relationship passes Wigmore's (1961) test for privileged communication which consists of four criteria specifying that (1) the communication must be confidential initially, (2) it must be essential to the relationship, (3) the relationship must be significant to the community at large, and (4) the injury to the relationship resulting from a requirement to testify must be outweighed by the benefits of those seeking testimony. It is concluded that a privilege exempting mediators from being required to testify should be allowed, but should be limited in scope to the various offers and stances made or taken during the course of mediation. 6 references.