Judge and Mediator – Big Brother?

Fairly Legal Blog by Clare Fowler

Judges and court-appointed mediators have an interesting relationship. ”Interesting” can be defined as big brother, incestuous, or a match made in heaven.

In an ideal world, a judge reviews the cases on her daily docket, and suggests/refers/mandates appropriate cases to her court-appointed mediator. In this ideal world, many of the cases would calmly settle. Some cases would return to the courtroom, without a settlement, but with a better understanding of the other party and the options available.

That’s the ideal world. And then there’s Kate Reed’s world.

In Kate’s world, the judge hands her a case. The judge threatens her to settle the case. The judge also tells her how he would like the settlement to play out. And in the middle of a case, the judge checks-in with the mediator, calmly pilfering sensitive and confidential information.

In the California Supreme Court, there is currently a bill in play that will change the confidentiality of information discovered in mediation. While it is hoped that everyone is on the same page for protecting a mediator and a client’s confidentiality, it is still worthwhile to check our assumptions and our goals.

I welcome further discussion on this topic–especially from those involved in drafting and reviewing the bill. It seems to me that our goal is somewhere between Kate’s world of a big brother judge and stark silence from the bench. I believe our goal for confidentiality is to:

1) enable the mediator to have sufficient information before the case to have enough facts to help the clients

2) allow the clients freedom to explore options during the mediation without being afraid that the brainstorming will haunt them during trial

3) allow the mediator protection from judicial pressuring

4) allow the mediator protection from testifying against herself or her clients.

What other confidentiality exceptions or privileges do we expect? And in designing our own ideal world, what do we hope for?

                       

Clare Fowler

Clare Fowler is Executive Vice-President and Managing Editor at Mediate.com, as well as a mediator and trainer. Clare received her Master's of Dispute Resolution from the Straus Institute for Dispute Resolution at the Pepperdine University School of Law and her Doctorate in Organizational Leadership, focused on reducing workplace conflicts, from Pepperdine… MORE >