Confidentiality is fundamental to the mediation
process. Without the promise of confidentiality, employers and employees
would be much less likely to use the mediation process to resolve their
disputes. Without the promise of confidentiality, mediation would not be
nearly as effective or widely used as it is today.
A dispute in the discrimination lawsuit pending against
the Greenberg Traurig law firm stands as a reminder that promises can be
broken.
Confidentiality Agreement Signed at Mediation
Before the lawsuit was filed, the parties unsuccessfully
attempted to mediate the case on October 10, 2012. Before the mediation
started, the parties signed a Confidentiality Agreement that provided in
pertinent part:
"In order to promote communication among the parties and
the mediator and to facilitate settlement of the dispute, all parties agree
that ....
All statements made during the course of the
mediation or in mediator follow-up thereafter at
any time prior to complete settlement of this matter are privileged settlement
discussions, are made without prejudice to any party's legal position, and are
non-discoverable and inadmissible for any purpose including in any legal
proceeding.
No aspect of the mediation shall be relied upon or
introduced as evidence in any arbitral, judicial, or other proceeding,
including, but not limited to:
(a) Views expressed or suggestions made with respect to a
possible settlement of the dispute;
(b) Admissions made in the course of the mediation
proceedings;
and (c) Proposals made or views expressed by
the mediator or the response of any party.
Since the parties are disclosing sensitive information in
reliance upon this agreement of confidentiality, any breach of this agreement
would cause irreparable injury for which monetary damages would be
inadequate. Consequently, any party to this agreement may obtain an
injunction to prevent disclosure of any such confidential information in
violation of this agreement.
Any party breaching this agreement shall be liable for
and shall indemnify the non-breaching parties and the mediator for all costs,
expenses, liability, and fees, which may be incurred as a result of such
breach.
To the extent that they are applicable, state law and/or
the Federal Rules of Evidence apply to this mediation."
(Emphasis added).
Broken down more simply - the parties to the mediation
promised each other that they would keep secret everything that happened at the
mediation and in any follow-up discussions to the mediation. They
promised that they would not use information from the mediation "for any
purpose including in any legal proceeding."
Greenberg Traurig Accused of Submitting
Mediation Information in Subsequent Legal Proceeding
In an Objection filed
with the court on January 11, 2013, Greenberg Traurig is accused of breaking
its promise. More specifically, the law firm is accused of disclosing
information in violation of Federal Rules of Evidence and in violation of the
signed Mediation Confidentiality Agreement. Here is an excerpt from the
Objection:
"GT's Filing includes throughout specific details of the
parties' confidential settlement communications. Details include (1)
characterizations and purported quotations of exchanges between Counsel during
negotiations, (2) substantive topics covered in mediation briefings, and (3)
allegations regarding actions taken and choices made by the parties during
negotiations."
The promise of confidentiality lies at the heart of the
mediation process. Indeed, the EEOC calls it a "core principle," stating
that "[c]onfidentiality allows the parties to freely engage in candid, informal
discussions of their interests and concerns in order to reach the best possible
resolution of the dispute. It also allows the parties to speak openly without
fear that statements made during mediation will be used against them in any
subsequent proceeding." EEOC's Handbook for
its Resolve Program.
As one commentator
has noted, however, this promise of mediation confidentiality, is "wrought with
a complex legal analysis where federal courts have contradicted one
another." We will all be watching as the court analyzes the issue in the
Greenberg lawsuit.
Read
more articles about managing workplace conflict at Win-Win HR, a blog by
Lorene Schaefer.
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