One of the most important hallmarks of mediation is confidentiality. (It is not, however, an absolute value: clients are informed early on that mediators have a duty to report circumstances of threat or danger to physical safety.) To safeguard the confidentiality of the process, Agreements to Mediate that clients enter into with the mediator typically include an undertaking that the mediator will not be called to testify in any subsequent legal process. In recognition of the need to guarantee confidentiality if the mediation process is to maintain its integrity and viability, courts generally do not compel mediators to give evidence.
This is why the case reported by Christopher Annunziata in his blog, CKA Mediation & Arbitration, is especially notable: it recounts the case of a mediator who served a “family in three different professional roles within three months’ time – counselor, mediator, educational consultant” and not only did not challenge a subpoena to testify but also responded to a court order in which he was criticized by further disclosing confidential information from the mediation process.
[. . .]the wife/mother filed a motion in conjunction with the divorce proceeding and for whatever reason, the mediator was called to testify. [R]ather than refuse to testify, as spelled out in his own Guidelines for Mediation and the ADR Rules, the mediator willingly testified about “how he came to mediate for the couple and the result of the mediation.” While the Ethics Committee [of the Georgia Office of Dispute Resolution (GODR) that oversees the court-referred mediation programs in the State of Georgia] found that these “matters in themselves are not confidential in a court-connected mediation,” they also found
“no evidence that he refused to testify or fought to quash a subpoena. There was no evidence that he sought a waiver of confidentiality from the family. Respondent did voluntarily what he could not be required to do under the rules.”
[. . .]
Even the judge [hearing the motion] recognized this mediator’s suspect ethics and wrote in an Order that he
“found [Respondent's] testimony and involvement with the parties in this case questionable at best”
[. . .]
[...] the mediator responded to the Court’s written opinion [and]
“described [the husband's] disruptive and uncooperative behavior during the mediation and quoted angry and insulting statements [the husband] made in joint session, as well as in caucus.”
[...] the Committee found that the mediator violated the Ethical Standard for Mediators [and] felt that this man committed such egregious errors that they removed his name from the roster of approved mediators. Apparently, the first time that penalty has ever been invoked.
Read Chris’s entire post here.
(H/T: Diane Levin)