Confidentiality and Privilege for Family and Child Protection Mediation: A Roadmap for Navigating the Innovation, Inconsistency and Confusion

• Author: Gregory Firestone,Fran Tetunic
• Published date: 01 January 2020
• Date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12455

CONFIDENTIALITY AND PRIVILEGE FOR FAMILY AND CHILD

PROTECTION MEDIATION: A ROADMAP FOR NAVIGATING THE

INNOVATION, INCONSISTENCY AND CONFUSION

Fran Tetunic and Gregory Firestone

This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the

mediator, and the difference between mediation confidentiality and privilege. Further,it will discuss the confusion and incon-

sistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the

time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It

will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the pro-

tection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand

and reap the benefits of mediation.

Key Points for the Family Court Community:

Considerable confusion in mediation communication protection definitions highlighted.

Inconsistent state protection of mediation communications demonstrated and examples provided.

Privilege and confidentiality are most common mediation communication protections utilized.

Privilege limits admissibility of mediation communication in court.

Parties and others may have a privilege to preventdisclosure of mediation communications in court.

Confidentiality limits mediation disclosures outside a proceeding unless the parties waive otherwise.

Parties need to know if mediation communications are privileged and/or confidential or otherwise protected.

Professionals and the court need to clearly inform parties about mediation communication protection.

A roadmap to determine when a mediation communication is protected is provided.

A fact pattern analysis of protection of mediation communication utilizing roadmap is demonstrated.

Keywords: Child Protection; Confidentiality; Divorce;Family; Mediation; Prividentiality; Privilege.

I. INTRODUCTION

Throughout the United States, family law and child protection cases routinely go to mediation

1,2

by court order or party initiative. The process gives parties the opportunity to share information,

identify their issues and concerns, explore resolution options, and oftentimes, reach an agreement

that uniquely meets their family needs and interests. The highly personal and emotive nature of

these cases combined with the significant issues to be resolved make confidentiality essential. The

process of mediation offers a means by which the parties can improve family communication,

reduce parental conflict that causes harm to children, and reduce the likelihood of future litigation.

3

The confidentiality protection offers the needed reassurance that shared information will not be

weaponized to injure family members or escalate family conflict.

The Uniform Mediation Act (UMA) was drafted to provide increased predictability and consis-

tency in mediation law. At the time of its drafting, there were over 250 varying state mediation priv-

ilege statutes.

4

The number and variety of protections reflect innovative state efforts to devise

Corresponding: tetunic@nova.edu; gfiresto@usf.edu

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 46–67

© 2020 Association of Family and Conciliation Courts

mediation communication protections consistent with jurisdictional priorities. Unfortunately, this

beneficial mediation innovation has led to markedly different mediation definitions, rules, statutes,

and case law concerning mediation communication protections. In particular, the failure to provide

a consistent, coherent definition of “confidentiality”related to mediation is troubling as the term is

presently used to mean distinctly different things.

With good reason, commentators have analogized deciphering mediation confidentiality to swimming

in a sea of ambiguity.

5

The time has come to decipher this ambiguity to provide the information people

need to decide whether to use the mediation process and what to disclose during the process. This arti-

cle will identify significant inconsistencies and confusion regarding the definition of mediation, the role

of the mediator, and the difference between mediation confidentiality and privilege. Further, it will dis-

cuss the confusion and inconsistency in the protection of mediation communication, specifically regard-

ing the definition of mediation communication, the time frame for protected communication, waiver of

the protections and exceptions to protected mediation communication. To demonstrate the variation in

mediation communication protection law, this article will compare provisions of the UMA with the Flor-

ida Mediation Confidentiality and Privilege Act (FMCPA), with reference to other states’relevant medi-

ation rules, statutory and case law. It also will provide a roadmap and fact patter n for determining

whether mediation communications are protected and if so, the protection they are afforded. Lastly, it

will offer recommendations so parties, professionals and the courts may better understand and reap the

benefits of mediation.

For purposes of this article, “privilege”means protection of a mediation communication from dis-

closure in a subsequent proceeding, and the term “confidentiality”refers to protection of mediation

communication outside a proceeding. The phrase “protected mediation communication”references

mediation confidentiality and privilege. However, when discussing cases, the court’s terminology will

be used.

II. INCONSISTENCY AND CONFUSION IN THE DEFINITION OF MEDIATION AND

COMMUNICATION PROTECTIONS

A. DEFINITION OF MEDIATION AND ROLE OF THE MEDIATOR

The definition of mediation varies greatly among states and based on the type of mediation.

Some states have brief, broad definitions, while others have longer more specific ones. The UMA

defines mediation as “a process in which a mediator facilitates communication and negotiation

between parties to assist them in reaching a voluntary agreement regarding their dispute.”

6

Surpris-

ingly, it provides a definition of mediator using the word mediation without offering information on

the role of the mediator. The UMA defines mediator as “an individual who conducts a mediation.”

7

With greater specificity, Florida Mediation Confidentiality and Privilege Act (FMCPA) states:

Mediation means a process whereby a neutral third party called a mediator acts to encourage and facili-

tate the resolution of a dispute between two or more parties. It is an informal and non-adversarial pro-

cess with the objective of helping disputing parties reach a mutually acceptable and voluntary

agreement. In mediation, decision making authority rests with the parties. The role of the mediator

includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving,

and exploring settlement alternatives

8

Interestingly, the Florida Supreme Court adopted court rules defining mediation as a process in

which the mediator is not only neutral but impartial as well.

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The role of the mediator will differ in

UMA adopting states as well as non-UMA states. Unlike the FMCPA, the UMA does not require

mediators to be neutral, but does give states the option of incentivizing mediators to be impartial.

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Mediator neutrality and impartiality, while sometimes used interchangeably, are decidedly different.

Neutrality requires that a mediator “have no personal preference that the dispute be resolved in one

Tetunic and Firestone/CONFIDENTIALITY AND PRIVILEGE FOR FAMILY AND CHILD PROTECTION

MEDIATION: A ROADMAP FOR NAVIGATING THE INNOVATION, INCONSISTENCY AND CONFUSION 47