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.

Did you know that this is the time of the year when people of Indian descent celebrate an ancient festival of spring called “Holi” or “Phagwah”, that includes peacemaking? Everyone gets what can best be described as colored baby powder – red, green, blue, etc. – and they sprinkle it on people with whom they’ve had a conflict. Here’s how Karna Singh, with the Rakjumari Cultural Center in Queens, NY,  describes it to Pulse of the Planet:

“It’s a time when people try to heal any difference or disagreement or conflict that existed from the past on this day. And the fun about it is that the way you do it is, not by even discussing the problem, but just marching straight up to your brother who you quarreled with, or mother who you were angry with, and take that colored powder and spray them, or rub it onto them, and hug them and kiss them.”

Will this really make peace? It won’t help with deep sins like adultery or abuse, but it just might have its place. Perhaps you realize you said something to someone that came across as more critical or angry than you intended; or you belatedly discovered that you missed a friend’s birthday or special occasion; or you neglected to return a phonecall. Rather than go through the awkward steps of apologizing, you can just walk up to them and throw some colored powder on them. They’ll presumably know what you mean. It’s a way to make peace without making peace. It’s better than nothing! Of course it’s not as beneficial as going through the true confession-forgiveness process—but for those conflicts where we were probably not going to do that anyway, this at least puts a peaceful veneer on the relationship.

Do some people throw colored powder on each other, year after year?

It strikes me that our Western Christian culture lacks a peacemaking ritual. Jews have their High Holy Days, and the Amish have their annual pre-communion time, but mainstream Christianity lacks an annual reminder of the need for peacemaking. Columnist Ann Landers has tried to fill this void with “Reconciliation Day” on April 2: “Since 1989, I have suggested that April 2 be set aside to write that letter or make that phone call and mend a broken relationship. Life is too short to hold grudges. To forgive can be enormously life-enhancing. . . .” A Catholic group is promoting October 4, the feast day of St. Francis of Assisi, as Reconciliation Day: “Reconciliation Day’s large purpose is to contribute to the resolution of conflicts and to promote reconciliation and peaceful, even joyful, coexistence.” (http://reconciliationday.net/RECONCILIATION_DAY_STORY.html)

From a New Testament perspective, every day should be “Reconciliation Day.” Jesus taught that, if while you are worshiping you remember that someone is upset with you, you should leave worship and go reconcile with that person (Matthew 5:7). We don’t get to postpone it. But the reality is that we do keep postponing it, and an annual cultural ritual might be just what we need to initiate peacemaking. Where can I get some of that baby powder?

I had the privilege of being one of the judges of the International Law School Mediation Tournament in Ann Arbor this weekend, and it gave me great hope for the next generation of lawyers. Teams of law students from eleven law schools in the U.S. and Canada participated in three rounds of mock mediations, playing the roles of attorneys, clients and co-mediators. They followed an interest-based model of mediation, looking for win/win resolutions. They played smart, savvy lawyers who recognized that things in addition to money were driving the litigation—e.g., protecting a reputation, wanting an apology, maintaining racial dignity—so that the outcome needed to include these things along with financial remuneration. They played skilled, neutral, impartial mediators who drew out underlying interests and facilitated negotiated resolutions. After each round was finished, the students offered insightful self-evaluations of their performance, and then opened themselves up to critique from the two judges who observed their mock mediation. The students were very receptive to our feedback, which made it rewarding for us judges. It’s encouraging to know that law students are learning how to be wise advocates in mediation, as well as how to be interest-based mediators, as part of their legal education. It bodes well for the future of the legal profession.