The parents of Adam Lanza, the young man responsible for the Sandy Hook murders, were divorced in 2009, after mediation. After the massacre last December, reporters tracked down the mediator, Paula Levy, and apparently asked her some questions. She was willing to answer them, at least generally. What is a mediator’s obligation to preserve confidentiality under circumstances like this?

AP reporters Matt and Adam Apuzzo posted a story after the shootings, reporting what the mediator said about the mediation involving Nancy and Peter Lanza: that they spent considerable time during the mediation talking about how to provide for their son Adam, then 17, who had been diagnosed with Asperger’s syndrome, that they were in complete agreement on how to address Adam’s needs but said little about the details of his condition. The story continues:

“The only two things I remember them saying is that she really didn’t like to leave him alone and I know they went out of their way to accommodate him,” said Levy, who recalled Nancy and Peter Lanza as very respectful of each other and equally concerned about their son’s needs.  “They worked together about it,” Levy said. “The mom, Nancy, pretty much said she was going to take care of him (Adam) and be there as much as he needed her, even long-term.”
While she would not disclose details of their discussions, Levy wanted to make clear that the Lanzas were loving parents who wanted the best for their son.
“These people are soft-spoken, gentle, both of them saying, ‘What can we do to help him?'” Levy said.

Mediators typically promise parties that the mediation is confidential, and that the mediator will not disclose anything said during the mediation. Assuming that was true in this mediation as well, the mediator believed either that her statements to the media did not breach confidentiality, or that they fell into an exception to the general promise of confidentiality. The mediator drew a line, refusing to disclose certain details, which suggests to me that she must have believed her comments were general enough that they didn’t breach confidentiality.

Standard VII of the Model Standards of Practice for Family and Divorce Mediation states, “A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.” The confidentiality provision in the Model Standards of Conduct for Mediators is similar, and specifically provides, “A mediator should not communicate to any non-participant information about how the parties acted in the mediation.” (Standard V.A.2.) Ms. Levy is a member of the Association of Conflict Resolution, one of the three organizations that authorized the Model Standards.

There’s no indication that anyone was requiring the mediator to speak; most mediators understand the word “required” to mean that the mediator was subpoenaed to testify. The other exception to the Standard is if the participants agree, but in this case, one of the participants was deceased; does that mean the surviving participant could permit the mediator to speak about both parties? I would like to think that’s what happened here—that the mediator contacted Mr. Lanza and asked whether it was okay for her to speak to reporters, and that the two of them negotiated what she could and could not say. (I contacted the mediator, Paula Levy, but she declined “to discuss this case at this time due to the sensitive nature of the situation.”)

Another way that mediators get around confidentiality is by describing their personal impressions of what occurred, as opposed to repeating party statements. I don’t know whether that truly preserves mediation confidentiality, but in this case, the mediator purportedly quoted statements made by the parties, so she wasn’t trying to rely on this justification either.

I certainly understand why she would want to talk with reporters; she was vindicating herself and her clients by emphasizing that there had been no telltale signs then that Adam was a mass murderer in the making. Did she harm her clients, or do the profession a disservice, by disclosing what was discussed in that mediation? How important is it to maintain confidentiality?

I had a unique mediation opportunity to last week: I was a participant (defense attorney) in a mediation. Here are eight things I learned about mediation:

1. It can be useful for the mediator to meet with the attorneys just before the start of the mediation. This gave the mediator an opportunity to hear each attorney’s argument, and hoped-for outcome. As a mediator, I may meet with the attorneys together, apart from their clients, at some point during the mediation, but I rarely meet together with all attorneys prior to the mediation. In this case, I had never met or spoken with opposing counsel (my discussions had all been with his partner) so it was helpful to meet him beforehand.

2. The mediator’s personal stories can be very helpful. In keeping with neutrality, it’s generally not advisable for the mediator to describe personal experiences related to the topics at hand, so I rarely do when I mediate. But our mediator shared a couple family stories, as well as a couple litigation stories, that were timely and on-point. Since the parties in our case were strangers, this humanized the process for all of us.

3. It made me anxious when the mediator began asking questions of my client in joint session. As a mediator, I usually ask the attorney’s permission before questioning their client, and our mediator did too—but I was still on edge, worried that my client would inadvertently undermine our mediation strategy, or cave in altogether. My take-away from this as a mediator is to be cautious about going too far with client questions during the joint session, be certain that these questions need to be answered in joint session rather than in caucus, and to be on high alert for cues from the attorney regarding the limit.

4. As an attorney, I really wanted to hear our mediator’s opinion about the strength of our case, since he’s a seasoned litigator. In the facilitative model of mediation, the mediator eschews any party attempts to get the mediator to share a personal opinion regarding the outcome of the mediation. In this case, I knew that our mediator had more experience in the subject-matter of our case than I did, and I truly wanted to hear his opinion – and he was not shy in offering it, which I found affirming.

5. The mediator needs to help each side negotiate. I already know this, but I sensed it in a different way as an advocate. In caucus, I asked the mediator to see if he could get the plaintiff to lower their price, but I didn’t provide a reason for them to do so. The mediator came back with a lower figure, tied to an apology from the defendant. I agreed, but I was also chagrined, because I’m a big proponent of apology in mediation—I train and teach about it all the time, and yet here it never crossed my mind!

6. Commend people for their good work. When the mediator commended the attorneys at the end of the mediation, for arguing strongly but never personally, it felt good. I like to commend everyone at the end of the mediation for cooperating and treating one another well, but I don’t always remember; now that I know how good it feels to hear that, I will make an extra effort to include this in my mediations.

7. The mediator needs to remember stuff the attorneys forget. None of us thought to talk about what should happen with the lawsuit because we were focused on other details of the agreement. It was only after the agreement was signed and copied that opposing counsel mentioned the lawsuit. I wish the mediator had raised this topic while we were negotiating other agreement terms.

8. Take the time necessary to draft a good agreement. We were rushed at the end, due to an agreed-to deadline, so the mediator drafted the agreement while the attorneys were still negotiating the details. The mediator included a provision obligating my client to do something that we had discussed, but that is legally unenforceable. I chose not to make an issue of it, which would have delayed the process, but in retrospect I should’ve spoken up.

What made this mediation especially interesting is that I “trained” this mediator, meaning that he went through our 40-hour course, even though he already knew how to mediate. He definitely did not follow our training model–and he did a great job.