Judges Gone Wild: Why Breaking the Mediation Confidentiality Privilege for Acting in "Bad Faith" Should be Reevaluated in Court-Ordered Mandatory Mediation

Authors

Samara Zimmerman, Benjamin N. Cardozo School of Law

Abstract

This Note focuses on the reasons why a good faith requirement or a bad faith exception for breaking mediation confidentiality is objectionable and offers an alternative for the Florida court system that, if implemented, could mitigate such disadvantages. I will discuss "the intersection between [a] court-ordered mediation, the confidentiality of which is mandated by law ... and the power of a court to control proceedings," and persons who appear before it by sanctioning conduct that taking place in mediation. Part II of this Note will begin by providing a background to the Doe v. Francis civil case. It will highlight the central concerns brought by the case and compare the statutes and case law from other jurisdictions, which strongly advocate a policy against a "bad faith" exception to mediation confidentiality. In Part III, I will argue that a bad faith exception to mediation confidentiality in a court-ordered mediation goes against the central tenets of mediation as an ADR practice and undermines what the mediation process seeks to achieve. I will also describe how enabling or compelling a mediator to reveal details of a mediation through a "bad faith" exception ends up hindering the purpose of mediation by furthering "legal values over mediation values." Finally, in Part IV, I will provide an overview of Florida statutory law on court-ordered mediation confidentiality, presenting its weaknesses and offering a method to handle bad faith exceptions that better balance the demand for productive party conduct with the need for maintaining mediation confidentiality. I propose the creation of a two-tier standard for behavioral mediation confidentiality. The first tier sets out objective criteria a party must follow as requirements for mandatory mediation; such standards provide clear guidance to parties in mediation and more sufficient notice of what the process requires. The second tier offers a procedure for situations where the objective standards are met but bad faith conduct claims are still brought forward. This tier could entail an in camera review by a judge to determine whether the claim of bad faith is frivolous or deserves sanctions before anything is made public. Since confidentiality is an essential element of mediation, this two-tiered standard is important because it hold parties accountable for their actions but simultaneously preserves mediation confidentiality, except under extreme circumstances.

Disciplines

Constitutional Law | Contracts | Courts | Dispute Resolution and Arbitration | Evidence | Law

Recommended Citation

Samara Zimmerman, Judges Gone Wild: Why Breaking the Mediation Confidentiality Privilege for Acting in "Bad Faith" Should be Reevaluated in Court-Ordered Mandatory Mediation, 11 Cardozo J. Conflict Resol. 353 (2009).
Available at: https://larc.cardozo.yu.edu/cjcr/vol11/iss1/15