G. Confidentiality Issues

One of the most often cited benefits of the use of alternative dispute resolution processes is the confidentiality surrounding them. This is even more pronounced in terms of the mediation process than other alternative dispute resolution procedures because mediation has always been considered a confidential process. While the use of mediation began with the assumption of a cloak of confidentiality, the validity of that assumption is

Copyright 2008 Mina Akins Brees page 18

Not clear. With more analysis over the years, the issue of confidentiality in mediation has

grown somewhat confusing. In today’s mediation climate not all things are confidential. A mediator may have a duty to disclose certain matters discussed in mediation. Many of these considerations and conflicts have contributed to the dramatic increase in attention given to this aspect of mediation. Confidentiality has become such an important topic in mediation that in the effort to draft a Uniform or Model Act on Mediation, the National Conference of Commissioners on Uniform State Laws has determined that a primary focus would be on confidentiality.

H. Outcome of Mediation and Issues of Enforceability

The effect of the resolution or non-resolution of a mediated dispute might vary depending on factors such as applicable statutes and law. Questions to ask in determining such effect include:

*Was there a contractual relationship requiring mediation?

*If so, does the contract require arbitration of unsuccessfully mediated

disputes?

*Did the parties agree contractually to be bound by the mediated agreement?

*What contract law is applicable to the agreement?

*Is there a controlling mediation statute?

*What is the particular mediator’s policy?

*Is the mediator required by law to make a report to the court or another institution or person.

agency or to the parties?

*Is the mediator prohibited by law from making a report to the court or

another agency or the parties?

The mediated agreement can take a number of forms. These range from the

Least formal, an oral agreement, to the most formal, a formalized legal document. There are many which fall between these two. The form of the agreement will often depend on the nature of the case and whether or not a lawsuit is pending.

It is also possible to have what is termed a self-executing agreement that is carried out completely at the time of the agreement. An example is the exchange of goods, or the payment of a sum certain. The item or cash is exchanged during the mediation, and the matter is concluded. These situations are very rare, but most often a written agreement would not be necessary.

Copyright 2008 Mina Akins Brees page 19

In many of the community mediation models, the issue of technical enforceability of the mediated agreement is rarely raised. The theory is that individuals who take part in agreement formation have ownership in it, are psychologically committed to it, and, therefore, are likely to comply with the terms. Research supports this hypothesis. It has been demonstrated that not only are disputants satisfied with the agreement, but also they perceive the outcome as significantly fairer than a court determination. Consequently, there is a much greater likelihood that they will follow the terms. Yet some agreements, particularly those that must be performed over time, contain compliance provisions. These may include a third party who will monitor compliance. In litigation, this party is often assumed to be the court.

An agreement reached during mediation should be embodied in writing. Mediation does not take the place of independent legal advice, and the embodiment of the agreement should be drafted by, or at least reviewed by, counsel for the parties. Generally, the enforceability of such agreements will be governed by general principles of contract law.

In a court-referred mediation, the written mediation agreements which are signed by all the parties and their attorneys are returned to the court and treated as docket entries in the court records. An attorney for one of the parties will draft an agreed order accepting the agreement. In drafting the signed mediated agreement, attorneys should consider the time value of money and should set a time frame for compliance to avoid overreaching by a party.

Дата добавления: 2015-10-30