Guest Editorial

• Date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12452
• Author: Gregory Firestone,Sharon Press
• Published date: 01 January 2020

SPECIAL ISSUE: PRIVACY PROTECTIONS IN VARIOUS ALTERNATIVE

DISPUTE RESOLUTION METHODS

GUEST EDITORIAL

Given the increasing number of family and child protection dispute resolution (DR) methods, the

different communication protections afforded to these methods, and the varying extent to which

communication protections are provided from state to state, it seems timely to devote a special issue

of Family Court Review to the subject of DR communication protections.

In this issue, some of the leaders in the field who have helped to shape the nature of communica-

tion protections in the family and child protection field, along with some of the most talented DR

professionals, review and critique current communication protection issues in a range of DR pro-

cesses used in family and child protection situations.

In most forms of DR, communication protections are essential, however given the varying nature

of the different DR methods, one cannot assume that all protections should be the same.

We begin this issue with an article we have written which looks at the varying forms of DR

methods and propose a new term, privadentiality, to describe communication protections which

may be provided in DR processes. We also offer a framework for categorizing DR methods in order

to develop more consistent and appropriate privadentiality protections across the spectrum of DR.

Linda Elrod addresses arbitration and other evaluative processes where decision making may be

delegated to others. She asserts that confidentiality of communications for family law issues is

important in all ADR processes. When communication protections are not provided by statute or

court rule for binding arbitration and similar processes, Elrod recommends that parties craft, via

contract, communication protection terms.

Fran Tetunic and Gregory Firestone address the confusing state of affairs in the communication

protections afforded to mediation and offer a road map for deciphering whether and to what extent

a mediation communication may be deemed confidential or privileged. In addition, they recommend

that mediators have an obligation to ensure that parties understand the extent to which their commu-

nications in mediation will be protected from disclosure in a proceeding and the extent to whichthey

must maintain the confidentiality of the mediation discussions.

Debra Carter and Doug Frenkel review parenting coordination (PC) legislation and report that the

majority of states do not provide any communication protections for the PC process. While they note some

states do, they believe that given the varietyof PC models and the continuing innovation of PC methods, it

is too early to recommend whether communication protections should be afforded to the PC process.

David Hoffman and Andrew Schepard discuss a very challenging issue faced only in collabora-

tive law (CL): to what extent should par ties and their attorneys be required to disclose information

to the other party when the information might be materially relevant, but the other party has not

requested this information? The authors set a high standard by recommending that CL attorneys

should not accept cases unless their clients are willing to be entirely forthcoming with such infor-

mation and attorneys must make such disclosures even when a request is not made.

Lisa Merkel-Holguin, Allan Cooke, Denise Evans, and Kelly Lynn Beck provide important

background on the development of family group counseling (FGC) in New Zealand and the United

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 7–8

© 2020 Association of Family and Conciliation Courts