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Confidentiality in Mediation - The Need for Protection

NCJ Number
Ohio State Journal on Dispute Resolution Volume: 2 Issue: 1 Dated: (Fall 1986) Pages: 37-45
L R Freedman; M L Prigoff
Date Published
9 pages
Mediation needs a law guaranteeing confidentiality, because the confidentiality maintained by the neutral party is what sustains the integrity of this dispute resolution process.
Confidentiality is essential because of the needs for candor, fairness to the disputants, and clear neutrality of the mediator. In addition, privacy is a reason why many people choose mediation. Moreover, mediators and mediation programs need protection against distraction, harassment, and diversion of their limited resources into recordkeeping and responding to subpoenas. Nevertheless, some commentators have argued against laws protecting confidentiality. However, current law does not adequately protect confidentiality. Many jurisdictions have adopted Rule 408 of the Federal Rules of Evidence, but it offers only limited protection. In addition, recent surveys indicate the growing use of subpoenas for information from a mediation. The benefits of a mediation privilege would outweigh the harm. Carefully drafted legislation could list exceptions and avoid the problems of a blanket privilege. Such legislation would recognize the fundamental differences between mediation and the full disclosure needed for traditional justice proceedings. 24 footnotes.


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