IF A THREAT OF VIOLENCE IS PRESENTED, WHEN DOES THE LAW REQUIRE FAMILY MEDIATORS TO BREACH CONFIDENTIALITY?

• Author: James Bartens
• Date: 01 October 2004
• DOI: http://doi.org/10.1111/j.174-1617.2004.tb01330.x
• Published date: 01 October 2004

STUDENT NOTE

IF A THREAT OF VIOLENCE IS PRESENTED,

WHEN DOES THE LAW REQUIRE FAMILY MEDIATORS

TO BREACH CONFIDENTIALITY?

Guiding Family Mediators Through

the Application

of

Turusoff

Principles

James Bartens

For a family mediator

to

protect his client, a third party, and/or himself from unlawfully disclosing a client’s admis-

sion, the family mediator should use the principle\ set forth in

Turmsoff’v.

Regents

ofthe

Universitv

of’

Culforniu

when

a

threat

of

violence is presented by one

of

his clients, since many states have adopted these principles through

case law and statute to protect third parties from acts of violence. The two most significant factors in determining

whether

to

breach conlidentiality are the identiliability

of

the victim and the likelihood

of

the potential physical

harm.

If

a jurisdiction has not explicitly done

so

via statute, the family mediator should nonetheles follow these

principles since they are likely to be adopted by that jurisdiction through case law, because the probability

of

a

court’s finding a special relationship between

a

family mediator and

a

client is relatively high.

A popular movement exists toward using alternative dispute resolution methods instead

of having the state handle family legal matters through its litigation process.’ The family

mediator’s job is to facilitate agreements between clients rather than

to

adjudicate decisions.’

Supporters of family mediation hail it as a superior form of dispute resolution as compared to

the litigation process.’ Mediation, however, relies heavily on clients to arrive at mutually

acceptable

resolution^.^

The mediator often dispenses with evidentiary or procedural

protections since mediation stems from the theory that “there are no

prosecutors

in media-

tion, only negotiators.”’

Without these evidentiary or procedural protections, clients are often encouraged to dis-

cuss their opinions candidly and to delve into collateral issues that would

not

otherwise be

raised in formal litigation.‘ Admissions of wrongdoing, liability, or other self-incriminating

facts by a client can often be revealed

to

a family mediator.’ Once confronted with these self-

incriminating statements from a client, the family mediator may have a duty under case law

or by statute to disclose the information to the proper authorities.’ The failure of a family

mediator

to

disclose under common law would constitute a tort, whereas a statutory breach

would constitute a misdemeanor or felony.’ A family mediator will derive his duty to protect

a third party, after his client has made a threat of violence toward the third party, from one or

both of these sources.’o

For a family mediator to protect his client, a third party, andor himself from unlawfully

disclosing a client’s admission, the family mediator should use the principles set forth in

Turusoff

v.

Regents

($the

University

of

Culifbrnin”

when a threat of violence is presented by

FAMILY

COURT

REVIEW,

Vol.

42

No.

4,

October

2004 641.654

1101:

10.

I

177/153 1244504268701

0

2004

Association

of

Family and Conciliation Courts

64

I