How Confidential is "CONFIDENTIAL" MEDIATION?
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By
Thurman W. Arnold III
A. There are several layers of confidentiality from our perspective at DFMS.
First, it is important to know that in terms of a mediator's involvement and the mediation process itself, one party alone can not compel the other party - or the mediator - to disclose what was said, how it was negotiated, what the concerns were, what was offered, or anything else that happened both within the mediation as it occurs in the presence of the mediator or outside of the mediator's presence to the extent it was a discussion that involved the subject matter of the mediation. California Evidence Code section 1119.
What this means is that in another court proceeding (or the underlying proceeding when a case is pending but the parties choose to suspend it while they attempt resolve some or all of their conflicts through mediation), the mediator cannot be compelled to testify or open their files absent consent by both parties and of the mediator themselves. Evidence Code section 1122.
The law is arguably uncertain whether Mediators must open their files when both parties demand it and for instance can be compelled to testify against their will, because the mediation privilege also belongs to the mediators. I will separately blog those cases for those who might be interested. In essence while there is federal authority that suggests that mediators can be forced to testify as least as to some matters occurring during mediation, California cases have applied a stricter standard in apply the California mediation privilege statutes. Our belief is that mediators cannot be compelled to testify about the mediation process itself, whether both parties consent to it or not.
What this does not mean is that a gag is automatically is placed in the mouth of one of two parties (or both) who want to argue or spin their case in the popular press. People can and will say what people can and will say. What it does mean is that third parties - employers, children, co-workers, and the press cannot learn a thing about what transpired in your mediation, except as to what was actually filed with the Court, absent the consent of both (or all) party participants. We live in a world of celebrity innuendo where many people believe that they are entitled, as a matter of right, to learn about the personal lives of politicians, actors, and community public figures - and this they can often do, in fact, by taking a trip to the local courthouse. But not where these disputants have cloaked themselves behind the mediation privilege which current California jurists must obey (except, of course, in cases involving bodily harm or more, or fraud).
Contrast the public Court experience with mediation, where nothing is filed anywhere to become a matter of "public record," except what both parties agree upon and jointly decide to show the world.
Mel Gibson's bitter entanglements have, in my opinion, cast an unfortunate pallor over mediation but this is not the fault of the mediators or of the mediation process. I believe that both parties in the Gibson/Oksana case attempted to abuse the mediation process for different reasons - possibly only after the fact (after the mediations concluded) - and in order to respond to public criticisms, or to seek more money, in tandem with the strategic releasing of the alleged audio recordings.
Their case is a modern Greek tragedy, and the backdrop of mediation and the participation of the mediators are simply props for the larger display of the parties themselves. This may be unfortunate as it affects the public perception of mediation, but it really has everything to do with parties who embrace the attention that public conflict brings and nothing to do with the integrity of mediation.
The beauty of mediation is that the process belongs to the parties, not to the parties' lawyers, and not to the mediators. Therefore there is nothing for the mediators responding to public battles to do but to maintain their own silence and integrity.
Next, the mediators at DFMS have each had experience with high profile cases, including lobbyists, local politicians, celebrities and other high profile folks, and many 'less privileged' people ("privilege" can be an oxymoron). It is our commitment to the parties, and to the process, that we maintain utter and complete confidentiality unless compelled by a Court order to speak.
And, one of our intentions in providing mediations from our addresses in Palm Springs, Beverly Hills, Century City, and Los Angeles is to help our clients obtain and maintain practical invisibility by mediating in the venue that best assures privacy.
Importantly for you and us, because our focus is on the transformative power of mediation and its positive affects upon divorce and other family law contests (and children), we believe that the parties who are drawn to employ us will embody a discretion that is appears to be absent from those couples who are driven to become high-profile and so share their struggles with a world that is, sadly for these others, just amused and lifelessly entertained.
We help resolve your conflicts with an uncommon passion and dedication!
T.W. Arnold
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