Better Practice Tip: Recognized Exceptions to Mediation Confidentiality

By Max Factor III, Esq. on January 1, 2005

Topic:

You are representing a client at mediation. You know the general rule: what happens in a mediation is confidential. However, during the course of the mediation, perhaps you observe that the mediator favors the other side. Or a party makes certain statements at the mediation which lead you to realize that the judge in your case has a material undisclosed financial interest. Perhaps a party appears medicated, unable to appreciate the meaning of the settlement reached at the mediation. Can anything be done? In many cases, the answer is yes.

Some Mediation Contracts Need Confidentiality Aspects

By Max Factor III, Esq. on September 16, 2004

Topic: About Mediation

In California, the State Legislature and the Supreme Court take the notion of Mediation Confidentiality quite literally. Rojas v. Superior Court (Coffin) (2004) XX Cal. 4th XX.

Unfortunately, shrewd legal counsel may turn the “public policy” goal of that confidentiality shield on its head. Their technique: prepare accurate evidence which is adverse to their client’s position and introduce it as a document at Mediation, with the assurance that this “truthful writing” will be cloaked in the Invisibility Shield of Mediation Confidentiality! The truth seeking which is supposed to be an integral part of the adversary process instead morphs into a tool for hiding the truth.

Is Duck Hunting for Mediators?

By Max Factor III, Esq. on September 1, 2004

Topic: About Mediation

One in a series of articles exploring the ethical dilemmas of mediation participants.

Supreme Court Justice Scalia has been requested by the Sierra Club, a litigant with an appeal pending involving Vice President Cheney and the White House task force he headed to develop the Bush Administration’s national energy policy, to step down from consideration of this case.

Six Ways to Defuse Moore-Style Techniques Used in Mediation

By Max Factor III, Esq. on July 22, 2004

Topic: About Mediation

Going to see Michael Moore's controversial documentary "Fahrenheit 9/11" won't earn you continuing education credits, but there's plenty that a litigator can learn from watching the movie.

There are two very different techniques Moore uses repeatedly. One is effective persuasion, clearly intended to persuade the uncommitted. Moore also uses shock, satire and derision to drive his points home - at the risk of alienating anyone who does not share his beliefs.