StudentShare
Contact Us
Sign In / Sign Up for FREE
Search
Go to advanced search...
Free

Mediation Confidentiality Law - Research Paper Example

Cite this document
Summary
The paper "Mediation Confidentiality Law" discusses that California is one of the states that is quite protective of the mediation privilege. Even in the cases where there seems to be an unjust result, California courts remain adamant and are not willing to create exceptions to those privileges…
Download full paper File format: .doc, available for editing
GRAB THE BEST PAPER98.2% of users find it useful
Mediation Confidentiality Law
Read Text Preview

Extract of sample "Mediation Confidentiality Law"

MEDIATION CONFIDENTIALITY Mediation Confidentiality Law Mediation is a process whereby the mediator facilitates talks between aggrieved parties following a dispute. The aim of mediation is to guarantee that the parties reach an amicable pact. It is a process that has gained so much traction in the recent past especially in the resolution of commercial disputes. Mediation is used by many states in America and is getting recognition and being accepted even in finding resolution of international commercial disputes. In California, for instance, the law recognises the fact that communications that occur in the mediation process remain confidential. Benefits of Mediation Mediation has many benefits to the parties involved. For instance, it protects not only the privacy of the involved parties in a dispute but also their confidentiality. According to Kevin (1992), confidentiality is very critical in any legal case; it brings many benefits to both participants in the course of dispute resolution. For instance, turning legal cases to alternative dispute resolution helps in making courts efficient and also reduces the number of cases handled by the courts. Consequently, this ensures satisfaction and raises confidence of the public in the judicial system as matters can be solved efficiently. Also, mediation, unlike other court procedures, allows litigants to have more control over the subject. This is very important because it reduces chances of destroying essential relationships. Mediation is also an essential procedure in the sense that it may lower legal bills of the litigants. According to Forrest (2011), this comes from the fact that mediation takes a relatively short time to resolve cases compared to normal court procedures. Key Statutes in Mediation Confidentiality The Mediation confidentiality law is recognised by the state law of California and is entrenched in sections 1115 through 1127 of the code of evidence (Callahan, 2012). In the section, the court defines the statutory as extensive. The court acknowledges the fact the use of mediation and its subsequent effectiveness falls purely on the candour of the parties involved. Roderick (2008) says that among the reasons for setting up the statute was the need to ensure that candid and informal talks proceeded smoothly with regards to past events. Roderick (2008) further acknowledges the fact that frank exchange is only possible in the mediation process upon the participants’ understanding. Therefore, mediation is possible when what they put forth will not be used for their misery later in other court processes. The Various Aspects of Confidentiality There is a common assumption in California that confidentiality is a privilege. This is not true; privileges can cease in different ways, for example, by statements or conduct that would imply intent to waive the privilege. Also, following the fact that confidentiality of mediation is more an evidentiary exclusion, it is never factored as a privilege in California. Things protected by Confidentiality According to California Law Revision Commission (1997), section 1119 of the confidentiality statute protects two kinds of evidence i.e. from discovery to admissibility. Anything that might have been put forth or any admittance made with the sole aim of, in the progression of, or pursuant to arbitration is protected (Callahan, 2012). In addition, everything that may be written in the mediation process (as defined in section 250) is also under strict protection. In the mediation process, unlike other court processes, confidentiality applies even without a written agreement; however, it crucial for the participants to have an agreement as it may serve other purposes. For instance, in the event that participants fail to reach an amicable agreement in the initial session, the mediation may be postponed. Usually, if communication does not occur within ten days between the aggrieved parties and the mediator, the process is thought to have ended: consequently, confidentiality is also not applicable after those days elapse. A written agreement usually done at the initial stage of mediation, however, will still remain in effect while the parties go on with settlement discussions with the mediator. How Forensic Evidence is protected In mediation, such things as photographs and written statements may provide compelling evidence and, as such are quite persuasive. Section two hundred and fifty of the statute looks at “writings” to include; photographs, written statements and consultants. The California Supreme Court explains that for evidence to be considered as confidential in mediation, it must be determined that it was prepared for that purpose. In accordance with section 250, written statements and photographs qualify as “writings.” On the contrary, actual physical samples do not qualify as “writings” in mediation although their analyses may qualify as “writings.” Issues in Confidentiality within Mediation Law Legal Malpractice There are many issues regarding the conduct of clients’ lawyers in the mediation process. According to California Law Revision Commission (1997), the client is prohibited from testifying in the subsequent litigation with regards to the lawyer’s utterances in the course of the mediation session. The California Supreme Court gave outright protection to the legal representatives that deny clients a chance to testify in a follow-up malpractice case. This is clearly an issue as it breaches the client’s standard of care. The simple fact that the confidentiality provisions are taken as finally add to the vulnerability of the clients to malpractices from lawyers. Limits on Testimony There is an assumption by particular clients that cajoling and enticing a mediator of the strength of their position; the mediator may favour them and appear as a witness in the course of the trial. Following that assumption, some clients become reluctant to confide in a mediator as they think that the mediator may in later stages testify against them. The effect of such assumptions is that they limit the amount of testimony that is given at any given time from the involved parties. It should, however, be clear that the law has a provision that prohibits mediators from testifying against both parties. This is an issue that needs to be clear as it is a block to effective and sound justice. Inadmissible Evidence As per California Law Revision Commission (1997), the confidentiality within mediation law asserts that the evidence obtained before mediation does not lose admissibility just because it was taken into account in the course of the mediation. On the contrary, it prevents any material that was prepared and used as evidence during the mediation session from being used, unless there is consent from the parties involved. Clearly, this is more like application of double standards. It is only logical to think valid evidence cannot lose that quality just based because it was previously used in mediation. Beyond the Courtroom The mediation confidentiality law has precincts beyond which it ceases to apply. According to Roderick (2008), the mediation confidentiality law only applicable in legal proceedings. This is such a significant derailment of the law because anyone can take on to the press and tell them what transpired in the mediation. Thus, the court proceedings do not allow people to discuss the merits or demerits of the case outside court. However, mediation confidentiality is open; consequently, a person can discuss the matters with professional colleagues and friends without fear of consequences. This is an issue that in my view needs to be addressed or maybe the provisions within the state law reconsidered. Family Court Exceptions In the confidentiality of mediation law, there is an issue with regards to mediation of child custody and visitation cases. According to Forrest (2011), most California counties have court rules that allow the mediator to, among other things draft recommendations to the judge. This is done in the event that mediation discussions fail to address all issues pertaining to child custody matters. This, however, contravenes the published appellate decisions. As such, court mediators in such proceedings are designated as “counsellors,” a move that is aimed at preserving the practice of giving admissible recommendations to officials in the family court. Following this controversy, the California Supreme Court issued a ruling requiring that counsellor’s recommendations be given in writing prior to any hearing. Recommendation for Improvement There is a necessity to reform some sections of the governing law of the land. For one, the regime that organizes the permissibility of possessions said or done at all organized alternative dispute resolution (ADR) process (Limbury, 2012). It is unjust that ADR practitioners face a high risk of being asked to produce evidence at ADR process if the process (especially mediation) was done before the court made an order. There is a great need for constancy. There is a tendency in the current system to provide a disincentive to early resolution of disputes. It is time for the state law to be harnessed in a way that it treats all people in ADR equally and to ensure consistency in the confidentiality and admissibility processes. Clearly, there is no rationalization for the numerous schemes that are linked with the acceptability of the matter that occur at an ADR course (Limbury, 2012). Conclusion In conclusion, California is one of the states that is quite protective of the mediation privilege. Even in the cases where there seem to be an unjust result, California courts remain adamant and are not willing to create exceptions to those privileges. As such, a mediator carrying out mediation duties in California relating to the California law is often guaranteed that whatever they say will never be disclosed in a subsequent proceeding. Such confident for a mediator is critical because it may ultimately have a bearing on the way on not only the way the mediator proceeds, but also his effectiveness. It also gives a window of opportunity for participating lawyers the freedom to do whatever they can with little risk of disciplinary consequences. While people may have varied opinions as to whether such freedom for lawyers is good or bad, there can be little doubt that some lawyers will act deviously as they know their behaviours will not be questioned. The mediator, on the other hand, while presiding over case whose substantive law is not straight-forward, must bear in mind, and not be nearly as confident that what they utter will remain secret. The council must equally be knowledgeable that in the absence of proper protection, the risk of careless behaviour will be high and can cause adverse consequences. It must, however, be noted that the protection of a bad lawyer by the mediation privilege was not the ultimate goal of the law but rather a mere side effect. There are fundamental reasons put forward for preserving the confidentiality of the mediation process. For one, it makes the process more effective and regardless of the side one is, preservation of confidentiality allows for more openness in dispute resolution. References California Law Revision Commission (1997) Mediation Confidentiality: Recommendation. New York, NY: CLRC Callahan, R. (2012). Mediation Confidentiality: For California Litigants, WHy Should Mediation COnfidentiality be a Function of the Court in Which the Litigation is Pending? Pepperdine Dispute Resolution Law Journal, 63-96. Forrest S.M (2011) “Confidentiality in Mediation” Retrieved on 18th Oct 2014 from http://callawyer.com/Clstory.cfm?eid=918251&wteid=918251_Confidentiality Kevin G. (1992) “Confidentiality in Mediation: A Moral Reassessment,” J. Dist. Resoln 1(1): 5-41 Limbury, A. L. (2012). Should Mediation be an Evidentiary Black Hole? UNSW Law Journal, 914-928. Roderick M.T (2008) “New California Mediation Confidential Law” Retrieved on 18th Oct 2014 from http://corporate.findlaw.com/business-operations/new-california- mediation-confidential-law.html Read More
Cite this document
  • APA
  • MLA
  • CHICAGO
(“Describe the law in relation to confidentiality within mediation by Research Paper”, n.d.)
Retrieved from https://studentshare.org/law/1661424-describe-the-law-in-relation-to-confidentiality-within-mediation-by-reference-to-the-law-in-your-state-and-any-relevant-cases-detail-the-areas-of-uncertainty-and-discuss-why-there-may-or-may-not-be-issues
(Describe the Law in Relation to Confidentiality Within Mediation by Research Paper)
https://studentshare.org/law/1661424-describe-the-law-in-relation-to-confidentiality-within-mediation-by-reference-to-the-law-in-your-state-and-any-relevant-cases-detail-the-areas-of-uncertainty-and-discuss-why-there-may-or-may-not-be-issues.
“Describe the Law in Relation to Confidentiality Within Mediation by Research Paper”, n.d. https://studentshare.org/law/1661424-describe-the-law-in-relation-to-confidentiality-within-mediation-by-reference-to-the-law-in-your-state-and-any-relevant-cases-detail-the-areas-of-uncertainty-and-discuss-why-there-may-or-may-not-be-issues.
  • Cited: 0 times

CHECK THESE SAMPLES OF Mediation Confidentiality Law

Mediation Observation Paper

The mediation case in focus involved James Nguyen, a student of Chapman law and who acted as the mediator between Robert and Swoboda who were the plaintiffs and Keith Mullens who was the defendant at the Corona Superior Court.... In introducing my friend Abdul Sameer and I, James described us as his fellow law students who had come to particularly assess his progress and approach to the mediation process.... The effectiveness and appropriateness of mediation is that it gives individual parties chances to express themselves with assurance of maintaining confidentiality of the views....
11 Pages (2750 words) Assignment

Prevention of Medication Error

Safety, Prevention, and Reporting Instructor University Name March 15, 2013 A medication error is considered any event which is preventable that may lead to the inappropriate use of medication or harm to the patient.... This definition is that which is used by the National Coordinating Council for Medication Error Reporting and Prevention (Sleinitz, Heyde, & Kloft, 2012)....
2 Pages (500 words) Essay

Mediation Advocacy and Practice

mediation Take Home Exam Date Part 1: Resnick vs.... The plaintiff, Josh Resnick came into the mediation asking for a settlement of US$110,000 and the respondent offered to settle the case for US$30,000.... By choosing mediation, they parties were in a unique position to remove the anxiety associated with outcome and they could control their proceedings and the outcome....
16 Pages (4000 words) Essay

Certification and Standardization of Mediators

Francis offers an important case study showing the impact of the ‘bad faith' exception to mediation confidentiality upon the process and underlying principles of mediation.... Francis raises deep seated questions involving the limits of mediation confidentiality, what is meant by negotiating in ‘bad faith,' and the influence courts have in directing mediation (2009, p.... Judges gone wild: Why breaking the mediation confidentiality privilege for acting in “bad faith” should be reevaluated in court-ordered mandatory mediation, 353-384....
2 Pages (500 words) Essay

MEDIATION between Saudi Arabia and The U.S

Some see this as…democratic storming of the Kafkaesque citadel of the law…[While] others see it as a dangerous dilution or even undermining of justice.... ??3 Despite the initial resistance, ADR has currently gained global popularity and acceptance amongst the common people and those in the law... A current review of the global legal and business scenarios reveal that increasingly larger numbers of conflict resolution is taking place through arbitration, mediation and negotiation....
35 Pages (8750 words) Thesis

Mediation Programs in the US

In 1969 the Philadelphia Municipal Court Arbitration Tribunal was set up, followed by the Columbus Night Prosecutors Program in 1971 in which law students spent thirty minutes at a time mediating cases.... The discourse 'mediation Programs in the US' elaborates the social phenomena which allowed the superpower to turn from a litigious society to a non-litigious network.... mediation is a process by which parties to resolve the issues between them by reference to a neutral third party....
28 Pages (7000 words) Coursework

The Principle of Confidentiality in Relation to Mediation

The paper 'The Principle of confidentiality in Relation to Mediation' looks at an important feature of mediation – proceedings.... Unless there is an assurance that confidentiality of matters relating to the dispute will not be compromised, parties will not come to the mediation forum.... The question here is whether can set aside the principle of confidentiality if circumstances so require.... This was against the confidentiality agreed upon by the mediator at the time of mediation....
12 Pages (3000 words) Dissertation

Cross-Cultivate Intermediation

The paper "Cross-Cultivate Intermediation" presents that conflict mediation entails establishing a peaceful solution among the disagreeing parties.... Understanding the shape of the conflicts, the stakeholders in the conflict, and the standards existent in the confines of the conflict facilitates the process of developing a suitable cross-cultural mediation approach.... mediation entails creating a link to the conflict to facilitate the resolution of the same and establish a common understanding among the differing parties....
9 Pages (2250 words) Term Paper
sponsored ads
We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.
Contact Us