The Need for Confidentiality in Evaluative Processes: Arbitration and Med/Arb in Family Law Cases

• Date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12454
• Published date: 01 January 2020
• Author: Linda D. Elrod

THE NEED FOR CONFIDENTIALITY IN EVALUATIVE PROCESSES:

ARBITRATION AND MED/ARB IN FAMILY LAW CASES

Linda D. Elrod

Arbitration, mediation/arbitration and arbitration/mediation allow parties to resolve their disputes usually more expeditiously,

privately and with less cost than going to court. While confidentiality is seen as essential to the mediation process and often

included in statutes, confidentiality seems less essential to a more adversarial process. Confidentiality provisions rest at the

intersection between privacy and self-determination and the protection of vulnerable parties in family law disputes. This arti-

cle explores the importance of confidentiality clauses in drafting arbitration and med/arb or arb/med agreements.

Key Points for the Family Court Community:

Lawyers need to anticipate the need for certain information to remain private.

Most legislation does not include confidentiality protections for arbitration, med/arb or arb/med

Confidentiality clauses should be carefully drafted to meet the privacy needs ofthe par ties.

If confidentiality clauses have not been drafted carefully, it may be possible to get an order of protection for material

the parties wish to keep confidential.

Keywords: Arbitration; Confidentiality; Family Law Arbitration; med/arb.

I. INTRODUCTION

Confidentiality protections in alternative dispute resolution (ADR) processes rest at the intersection

between privacy and self-determination and the protection of vulnerable parties in family law disputes.

ADR has become the predominant way of resolving parenting and other family issues.

1

Arbitration and

mediation/arbitration (med/arb) are the most recent attempts to allow parents to settle their disputes out of

court.

Family law litigation has increased dramatically since the 1970s.

2

Court systems lack the

resources to deal with high conflict parents who make repeated trips to court, resulting in trial

delays of years in some jurisdictions.

3

Mediation became the “workhorse of family dispute resolu-

tion”

4

starting with facilitative mediation in the 1980s.

5

The parties would voluntarily choose a third

party, often a nonlawyer, to help them clarify issues, deal with underlying emotions, identify inter-

ests, and develop their own agreement. Confidentiality of mediation communications was seen as

essential to candor.

6

Legislatures have provided confidentiality and testimonial privilege statutes that

prohibit parties, mediators and nonparty participants from disclosing almost anything said or done

in mediation.

7

Mediation appeared to successfully reduce the number of trials

8

and lessen the negative impact

on the well-being of children.

9

Legislatures and courts began to require that parties meet with a

mediator at least once to attempt to resolve their issues before going to court.

10

Court-mandated

mediation, however, tends to be more evaluative

11

and looks more like conciliation,

12

early neutral

Corresponding: linda.elrod@washburn.edu

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 26–45

© 2020 Association of Family and Conciliation Courts

evaluation,

13

a settlement conference,

14

or an arbitration substitute.

15

The mediator is under pres-

sure to resolve the core legal dispute quickly and may be more directive because the judge wants

the case to settle.

16

These evaluative processes may lack confidentiality protections as well as court

oversight of procedural and substantive fairness. Statutes or rules which require parties to make a

good faith attempt to mediate before going to court leave the parties little option but to sign the

“agreement”to mediate.

17

Today, arbitration, binding and nonbinding,

18

and mediation/arbitration

(med/arb) or arbitration/mediation (arb/med), often court-annexed, are increasingly being used in

family law cases. The confidentiality of these other evaluative processes remains unclear.

While public policy favors self-determination and private ordering,

19

public policy also favors

fairness and protection of vulnerable parties and their children. Family law disputes involve com-

plex, intense emotions, and intimate relationships, giving them the potential for unequal bargaining.

Parties may divulge all types of “dirty laundry”along with personal information related to their

health, sex life, financial problems, business dealings, as well as matter relating to their children’s

temperament, health, educational assessments and placements. Family law disputes concerning chil-

dren implicate unique state interests because the state (judge) has a parens patriae duty to protect

children and vulnerable family members.

20

Relationships between parties, like parents, who must

continue to interact may be irreparably harmed by adversarial, time-consuming litigation that drains

emotions and finances. Parties who are unable to resolve their dispute through mediation may want

to protect the privacy of sensitive information and find “arbitration is a useful exit ramp off the liti-

gation freeway.”

21

While mediation confidentiality protection has been established by evidentiary

rule, statutory privilege, local court rule, and contract,

22

family law arbitration has few statutory

protections or court rules that cover confidentiality.

23

Med/arb raises even more complicated issues.

Confidentiality and privacy are the main reasons that parties choose ADR. Cour t-mandated,

more informal processes, often with neither party having an attorney,

24

may reach a cheap and fast

solution, and remove cases from court dockets. These more evaluative processes, however, raise

questions about informed consent, due process,

25

the risk for prejudice based on gender or

culture,

26

and the ability of the parties to self-determine, especially in the case of intimate par tner

violence.

27

State action is involved when mandated ADR processes are used to resolve private dis-

putes and enforce agreements made in those processes.

28

Parties need to know the types of ADR

options available and make an informed choice, rather than be forced into a court-mandated process

or be unduly coerced by a more powerful spouse or party.

29

This article will look at the advent of

family law arbitration, med/arb, the role of informed consent, and the use of confidentiality in arbi-

tration, med/arb, and arb/med. The article concludes that while it is necessary to have safeguards to

protect children and vulnerable family members, all family law ADR processes should be confiden-

tial to protect privacy and self-determination.

II. ARBITRATION

A significant advantage of arbitration …is the opportunity for the resolution of sensitive matters in a

private and informal forum.

30

Arbitration is theoretically the ultimate exercise in self-determination.

31

The parties voluntarily

agree to select (and pay) a neutral third party based on the person’s reputation, expertise and experi-

ence to make a “binding”decision. The parties substitute a private process with an “expert”neutral

to bypass the delays, formality, and time constraints of the public court system.

32

The parties set

out the rules and evidence that will be allowed, select which issues will be decided, and determine

to some extent reviewability of any arbitration award. The parties also can set out the level of pro-

tection for communications. The ideal arbitration assures an expert who makes a decision in less

time and at less cost than traditional litigation.

Arbitration has been around in religious tribunals

33

and by custom in the commercial world for

centuries. In the United States, the Federal Arbitration Act (FAA)

34

requires courts to enforce

Elrod/THE NEED FOR CONFIDENTIALITY IN EVALUATIVE PROCESSES 27