Confidentiality in mediation
By AdvocateDaily.com Staff
The secrecy of mediation proceedings is often touted as a benefit of the process, which means breaches are taken very seriously. But Fisher, principal of Barry Fisher Arbitration & Mediation, says the concept often needs to be fleshed out for those involved.
“People use the word confidentiality, but they’re not necessarily talking about the same thing,” he says. “They shake hands on it, but they leave with different ideas of what it means.”
To assist all parties, including the neutrals, with an understanding of their responsibilities, Fisher and Israel, founding partner with employment and labour law boutique PI Mediation, have identified four types of mediation confidentiality.
1. Contractual settlement confidentiality
On the assumption a settlement is reached, one or both sides typically ask for at least some of the terms of the agreement to remain secret, says Israel.
However, things get trickier when employers want to prevent former employees from acknowledging even the existence of a settlement, Israel says. And some defendants even wish to insert a forfeiture clause that penalizes parties for a breach of confidentiality.
The provisions, colloquially named after a former Globe and Mail columnist who was forced to pay back her settlement, “are very problematic,” Israel says.
“But the reality is that defendants often ask for them, and the vast majority of plaintiffs agree,” he adds, noting that they frequently breed further arguments over whether a violation has been proven and how much of the settlement is subject to forfeiture.
If he fails to talk defendants out of including such a clause, Fisher says he will attempt to make any disputes subject to arbitration by him.
The earlier the issue is raised, the better, Fisher says.
“If an employer is going to insist on something outside the norm, like a strict confidentiality clause, it should be included as part of their offer,” he says. “You don’t want to think the whole thing is agreed at $100,000, and then go on fighting back and forth over the terms of the settlement.”
2. Confidentiality in the Rules of Civil Procedure
Section 24.1.14 of Ontario’s Rules, which applies to mandatory mediations required by the Superior Court in some areas of the province, provides that “all communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice settlement discussions.”
“In simple terms, it means nothing that happens at the mediation is admissible in court,” Fisher explains.
Israel reinforces that message with a clause in his standard mediation agreement that limits the circumstances under which he can be called as a witness by either of the parties in a court action.
“The problem that sometimes comes up in terms of a without-prejudice clause is if the spouse of a party or other family member is in the room,” he says. “You have to remember to alter the agreement to have them sign it as well.”
Relying on the provisions in the Rules, Fisher takes a different approach, dispensing with an agreement altogether. Instead, he delivers a letter of adhesion to counsel for each party that relates mostly to his fee and doesn’t even require a signature.
“I used to have them sign an agreement, but I found nobody would read it before signing,” Fisher says. “I also didn’t like starting off the mediation in a way that focuses on me and my interests because it detracts from the real issues at hand.”
3. Contractual process confidentiality
Whether or not a mediation is governed by the Rules of Civil Procedure, Israel says the parties often emphasize the secrecy of the proceedings with a clause in the agreement stating that no party or their counsel shall disclose what happened to any third party, except as required by the terms of agreement, or by a court ruling.
He says some defendants will even make their own addition, spelling out the plaintiff’s responsibility not to comment on proceedings on social media.
“Sometimes they go on for pages enumerating the sites: Facebook, Instagram, Twitter and so on,” Israel says.
Fisher says he understands why defendants want to drive that message home.
“At the end of the day, nobody cares if you tell your uncle what happened. The real concern is publication,” he says.
Still, Fisher says he tries to keep himself out of the discussions over process confidentiality.
“It’s a matter of the parties agreeing. It doesn’t hinder my ability to do the mediation, and if they want it agreed in writing, they should draft it between themselves,” he says.
In any case, Fisher says he dislikes comprehensive process confidentiality clauses because they are so routinely breached.
“If you take them literally, it means you can’t come home and tell your spouse how good the mediator was or how much your lawyer sucked,” he says. “I don’t like imposing obligations that are never going to be met.”
Another tacitly accepted breach frequently occurs when cases come before judges at pre-trial conferences, and they want to know where the parties left off at mediation.
“Judges want to see if they can close the gap without going back to square one, but it’s an apparent breach of the mediation agreement,” Fisher says. “Why draft a term you know will be breached?”
4. The mediator’s ethical obligations
Irrespective of the terms of any mediation agreement, Fisher says lawyers who act as mediators are bound to maintain the confidentiality of the proceedings before them by their various professional codes of ethics.
“It’s not contractual, and it can’t be waived,” he says.
For that reason, Israel says mediators must be careful during professional or social get-togethers not to reveal information that might identify the parties that appeared before them.
“We tend to be big personalities, and like anyone else, we gossip around the water cooler,” he says.
Some mediators tread more carefully than others, but nobody in the relatively small legal community wants to gain a reputation as someone who is careless with their professional duties, Israel adds.
But breaches can also occur during the mediation itself, depending on how the mediator deals with the passage of information between the parties.
“Some mediators operate on the assumption that anything a party says in caucus is confidential and can’t be mentioned to the other side without their say-so,” Fisher says. “That’s not my practice, so I tell the parties that I’m free to share anything they tell me with the other side unless I’m told otherwise.”
In fact, he says there are few instances in which it will be useful for a party to withhold information revealed to the mediator.
Israel says he frequently convinces a reticent party to share information, such as the existence of a contingency fee agreement if he thinks it can help in reaching a settlement.
He says the real trouble comes when a mediator, usually inadvertently, reveals information to one side despite the other party’s explicit request to keep it secret.
“The only thing to do is offer to resign and call your insurer,” Israel says.