Category Archives: Mediation

ADR Section Recommends More Mediator Disclosure

What should mediators disclose to parties who are considering appointing them as their mediator? Mediators are supposed to be neutral, so parties want to know about any connections a mediator may have with a party or attorney that might make them biased. The Michigan Mediator Standards of Conduct provide guidance on this. They require mediators […]

Enforceability of NDAs

Following up on my post on November 27, 2021, regarding mediating Non Disclosure Agreements (NDAs), two scholars have just written an article for on the legal enforceability of NDAs. They cite only a few cases, but conclude that courts are signaling “a willingness to rein in the most egregious abuses” of NDAs where they […]

Universal Disclosure Protocol for Mediation

Michigan mediators have been wrestling with what they must disclose to potential mediation parties, especially since the Hartman case. That was the divorce case where the mediator did not disclose to the husband or his attorney that she was good friends with the wife’s attorney—such good friends that she flew to Florida to spend a […]

Confidentiality in Mediation: Tyler v Findling

The Michigan Supreme Court upheld the confidentiality of mediation in a case decided last year, Tyler v Findling. The facts were somewhat unusual; the statement in question was made by one attorney (Mr. Findling) to another attorney, outside the presence of the mediator or the other mediation participants, and it did not concern the substance […]

Non-Disclosure Agreements: Are Mediators Unwittingly Perpetuating Abuse?

Non-Disclosure Agreements (NDAs) are contracts binding parties to keep quiet, often to keep quiet about their dispute and its settlement. NDAs have come under increasing scrutiny of late, because they have permitted wrongdoers to go on to harm others. One famous example is Hollywood producer Harvey Weinstein, who was sued several times for his sexual […]