Eleven years after adopting its initial rule regarding confidentiality in mediation (the identical provisions appear at MCR 2.411(C)(5), General Civil mediation, and 3.216(H)(8), Domestic Relations mediation), Michigan will have a new rule, MCR 2.412, effective September 1, 2011. The new rule addresses concerns raised by practitioners that the current rule is overly-broad, protecting communications made in mediation that ought not be protected:
• Does evidence introduced in mediation become confidential, even if it is otherwise discoverable?
• Is a mediator violating confidentiality by reporting a threat of immediate harm made by a party in a mediation?
• Should confidentiality prohibit a client from suing her attorney for malpractice based on the attorney’s performance in the mediation?
• Must an attorney refrain from reporting attorney misconduct to the Bar, because it occurred in a mediation and is thus confidential?
Under Michigan’s rule, all the above are protected; under the new rule, they are specified exceptions to confidentiality.
The current rule is only two sentences, plus four administrative exceptions. My guess is that it was drafted rather hastily, without thorough consideration to all its ramifications. In my opinion, it gave confidentiality a bit too much preeminence, to the neglect of other “good’s.” It is good to hold mediation communications confidential, but it is also good to warn a person if you know someone plans to harm them; it is also good to report suspected child abuse to the proper authorities so it can be stopped; it is also good to expose attorney misconduct. The current rule is too thick of a blanket, covering up communications that should be exposed.
And, because the current rule is so broad, it invites abuse, such as waiting until the mediation to disclose evidence that, now cloaked with confidentiality, cannot be discovered. Litigators assure me that they still have ways of discovering it after the mediation, but it shouldn’t be a game; I don’t think confidentiality was ever intended to protect information that would be otherwise discoverable.
The new rule addresses all these concerns, and more, by listing twelve exceptions to the general statement that, “Mediation communications are confidential.” The new exceptions loosen the current shield around wrongdoing done or revealed in mediation, by permitting disclosure of:
• a mediation party’s threats of harm or plans to commit a crime;
• communications regarding abuse or neglect of a child, of a protected individual, or of a vulnerable adult, as defined in Michigan’s Social Welfare Act;
• professional misconduct or malpractice committed in the mediation.
The new rule also exempts from the mediation confidentiality blanket evidence otherwise admissible or discoverable.
The new rule will not end the debate about confidentiality in mediation, but it moves Michigan in the right direction: the confidentiality blanket will become thinner on September 1, 2011.