Confidentiality in Mediation

Michigan’s Court Rule on mediation is now ten years old. The provision on confidentiality in mediation has proven to be both too broad in some ways, and too narrow in others. In November 2008, the State Court Administrative Office convened a committee to recommend changes to the court rule on mediation confidentiality. The committee members included attorneys, some of whom are ADR providers and some of whom are ADR “consumers,” as well as law professors, mediation trainers, an ADR Clerk from a local court, a CDRP center director, and me — over two dozen in all. The committee met several times as a whole, for some wide-ranging discussions on the intricacies of confidentiality. A strong influence was the Uniform Mediation Act, which some states have already adopted. For various reasons, we chose not to recommend adopting the UMA, but to incorporate its best provisions into a new court rule.

Confidentiality in mediation gets very complicated! While we all agree in principle that it’s a good thing, it turns out to be very difficult both to define it and to ensure it. I was humbled by the many wise people on the committee who understood its intricacies far better than I could. We finally agreed on a draft rule this summer, and it was submitted to the Michigan Supreme Court for their approval. The Court just ruled last week that the proposed rule should be published for comment. If everyone agrees that this rule is an improvement, Michigan should have a new court rule on confidentiality in 2011.

Here is a link to the proposed Michigan Court Rule on Confidentiality: http://courts.michigan.gov/scao/resources/publications/reports/ODR-MediationConfidentialityReport.pdf

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