Mediators can have a dramatic affect on the lives of the parties, and even the attorneys who take part in the mediation process. In the course of the mediation, the mediator, as a professional, is entrusted with private information with an expectation the mediator will say nothing to anyone else about this information without permission. The parties and the attorneys reasonably expect that the mediator will protect the privacy of the information confided at the mediation, not just from the other party to the mediation, but to all members of the public as well. The basis for the expectation of privacy is a central theme of mediation practice in Texas.
Unlike for attorneys or for medical doctors, there is no disciplinary procedure whereby a mediator may be held accountable or otherwise lose the authority to conduct mediations. This is in large part because there is no governmental organization that regulates mediators or designates mediators. Even those mediators who hold themselves out as “certified”, are merely acknowledging that they met certain criteria of a private mediation organization. Often these organizations require a certain number of mediations completed, a certain number of hours of mediation education classes, and possibly a certain number of total hours spent engaged in mediation. But anyone could start such an organization and set up varied criteria to help underscore a level of experience or differentiate between mediators. Such is not uniform in basis for all mediators; no organization features required membership as a prerequisite to engaging in mediation.
With this backdrop in mind, the Texas Supreme Court recognizes that there are no set ethical requirements in place that govern the conduct of Texas mediators. There are, however, aspirational guidelines adopted by the Supreme Court of Texas. In particular, these are referenced as the “Ethical Guidelines for Mediators”
Adopted June 13, 2005, by Misc. Docket No. 05,9107, and amended April 11, 2011, by Misc. Docket No. 11-9062. As the Preamble makes clear, these Guidelines “are not intended to be disciplinary rules or a code of conduct.”
The Guidelines define a mediation as “a private process in which an impartial person, a mediator, encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding. In general, the law and courts favor the settlement of disputes. Resolution makes our society more harmonious and relieves potential clogging of our courts. The courts want to bring this reconciliation about, even to prevent a case fro being brought in the first place. There is a benefit to having easy access to the mediation process. To this end, the limitations of who may participate in the activity is limited, enabling pretty much anyone who takes a forty hour class to hold himself or herself out as a mediator for civil non-family cases. Similarly there are few if any rules which govern mediators as a matter of law, as opposed to as something only a bit stronger than as a matter of suggestion. Plainly mediators have an obligation to report to certain authorities involving certain instances regarding the mistreatment of a minor and in other situations of this type. But basically what keeps a mediator from sharing private information is a promise not to—in effect, a social contract—as well as the interest in preserving ones reputation for integrity, together with one’s interest in one’s own personal integrity, unrelated to reputation in the community. A promise not to share information can be of great meaning to the person who makes that promise.
To express this confidentiality expectation in a dignified manner, the Texas Supeme Court’s aspirational Guidelines state that “A mediator should protect the integrity and confidentiality of the mediation process. The duty to protect the integrity and confidentiality of the mediation process commences with the first communication to the mediator, is continuous in nature, and does not terminate upon the conclusion of the mediation.” In addition, under Comment (a) to Guideline 2, “a mediator should not use information obtained during the mediation for personal gain or advantage.”
The use of information for personal gain is unique because, unlike sharing information directly with a third party, to violate this Guideline, the mediator could merely privately act in reliance on the information garnered in the mediation. For example, the mediator could learn of a particular property unique characteristics and then bid against a party for the property. The mediator, not ever otherwise knowing about the property, would be acting not only in the mediator’s own interest, but also the mediator would be acting against the interest of a party. Another example of such a violation would be a mediator who learns of a particular trade secret in the course of the mediation, such as a customer list, and the mediator then privately acted on this data by amassing these customers for the mediator’s own interests, perhaps a passive stake in a company that competes in the same industry as a party who had come before the mediator and revealed the data.
One way that parties could insulate themselves, at least somewhat, from the misuse of trade secretive data is to make the signing of a non-disclosure agreement a prerequisite for the mediation. This notion coming from the party is intriguing because many mediators ask the parties to sign a nondisclosure agreement at the outset or just prior to a mediation. The mediator requires this nondisclosure agreement to ensure the parties themselves are comfortable with each other gaining access to the information shared in the context of the mediation.
At the outset of the mediation, the mediator typically will express to the parties, attorneys, and those present that what happens at the mediation is confidential. More particularly, what the mediator is really meaning by this is that the information shared at mediation cannot be brought into court and entered into the record or used to impeach a witness.
Often the issues shared have little to do with the facts of the dispute of the moment, per se, and much to do with underlying feelings or concerns between the individuals involved in the dispute. To be successful, mediations need to have an expectation of privacy to ensure the parties feel a freedom to speak without legal repercussion, so grievances and sensitive underlying feelings, issues, or facts can be heard and addressed. In providing a forum for dialogue, the mediator can ideally get to the bottom of why the parties hold each other accountable in one way or another.
There are not yet licenses for mediators provided by a government entity, and so the best the industry can presently offer are the aspirational guidelines.
It is therefore essential, in selecting a mediator, to be sure the mediator will truly respect and honor the privacy of the parties. To this end, what happens in any mediation I conduct remains confidential and is never shared, except with the consent of the party who shared the otherwise unknown information. The most common example of this is when talking to the other side in a separate room an offer of a certain dollar amount to settle a matter. Routinely, I ask very definitively whether I may share the offer before leaving the room. Not as often, but at times, I’ll even ask the party or attorney for the party to write the offer, or even to write and initial the offer. The purpose here is to maintain the trust between the mediator and the party, and to ensure the dignity of the mediation itself.
Maintaining confidentiality is essential to the success of mediations and also to ensuring the societal trust in mediations as a means by which to resolve disputes. A breach of confidentiality would undermine trust in mediations as stories of the breach would circulate, and result in more lawsuits being filed or taken through trial, rather than trust mediation as a process. It is therefore essential to honor the confidentiality of information shared at the mediation.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.