Are Mediator Statements Confidential Too?

Confidentiality in mediation typically refers to communications made by the parties and their attorneys. What about statements made by the mediator? Are those confidential? And if so, what should a mediator do when a party publicizes a statement allegedly made by the mediator in mediation, especially if it’s inaccurate?

This happened to a mediator colleague recently. In a workplace mediation involving an allegation of sexual harassment against the male CEO, the female accuser sensed that the mediator did not believe her. When other evidence later revealed that there was indeed serious sexual harassment, the female accuser wrote a letter to the board listing all the ways it had missed opportunities to stop the harassment. In that letter, she wrote that the mediator told her she was insane for accusing her boss of harassment, and she named the mediator. The letter went public.

Obviously this party was unhappy with the mediation. She may have assumed that, since the company was paying for the mediation, the board ought to know “what really happened.” She may not have intended for the letter to go public. Nevertheless, she’s damaged the mediator’s reputation.

Was the party free to disclose what the mediator told her in the mediation? The first place to look for an answer to this is the retention agreement between the mediator and the parties. My retention agreement makes communication “between the mediator and any party” confidential. I have an expectation that, just as I am bound not to disclose what they say to me, the parties will not disclose what I said to them. If the mediation is conducted pursuant to rules or laws regarding confidentiality, such as Michigan Court Rule 2.412, they also likely make mediator statements confidential. So the party arguably breached her agreement with the mediator.

She may not have known how to complain about the mediator. Since this was an internal, pre-suit dispute, I assume no lawyers were involved. A dissatisfied party could ask their lawyer for help in addressing an unhelpful mediator, but often the dissatisfied party sees their lawyer as part of the problem. (See, e.g., Vittiglio v. Vittiglio, 830 NW2d 385 (2013)) There are several ways a party can complain about an unscrupulous mediator. If the mediator is affiliated with a court program, the party can complain to the court; if the mediator is a member of a certifying organization, it usually has a complaint procedure; if the mediator is an attorney, a grievance can be filed.

How should the mediator respond? If the party breached her mediation agreement, the mediator could sue – but mediators are dedicated to helping parties avoid litigation and are loathe to sue the source of their business. Should the mediator try to defend himself? If the mediator really did imply that this party was insane, it will be tough to explain how that made sense in the context of the mediation. If the mediator did not say it, his defense makes the party out to be a liar. Either way, the mediator is violating the confidentiality promise, because any explanation will necessarily disclose more mediation communications.

Mediators publicly accused of wrongdoing are in the same boat as anyone else publicly accused: any explanation sounds like an excuse, any defense sounds evasive. Public apologies are difficult to do well, and are not appropriate if the mediator believes he was innocent of wrongdoing. (Saying, “Sorry if you felt hurt” is worse than not saying anything.)

This party could have achieved her purpose of informing the board, without disclosing the mediator’s name in her letter. It might still have breached her confidentiality agreement, but would not have been defamatory too. Then she could have pursued a complaint against the mediator through an organization that certifies, licenses or otherwise authorizes the mediator.

Mediator names are not usually disclosed, for good reason: it’s the parties who settle cases, not the mediator. The remedy for addressing mediator misbehavior is not naming the mediator on the internet, but pursuing a process designed to address mediator misbehavior. Perhaps we mediators need to do a better job of publicizing these “mediator discipline” options so parties don’t feel that their only option is to go public.

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