Mediation Confidentiality and Probing Pre-Trial Judges
Confidentiality is a hallmark of private mediation.
When I introduce the mediation process at the start of a mediation session, I make that clear. In line with that theme is the notion that mediated discussions are "off the record.” In other words, the substance of discussions at mediation cannot be used in any subsequent process. This includes offers made during the course of mediation.
Typically, prior to the commencement of a mediation session everyone at the table affirms their commitment to confidentiality by signing an Agreement to Mediate that contains a confidentiality provision.
Despite this backdrop, it is apparent that some counsel are reluctant to put their best and final offer on the table at mediation. These counsel fear that if the matter doesn't settle at mediation they will be stuck with their last offer when the case goes to pre-trial, when the first words out of the pre-trial judge's mouth are: "So, what were your final offers at mediation?"
I must confess, when I first caught wind of this pre-trial scenario, I was surprised and disappointed. I've now become accustomed to hearing it, but no less pleased. Counsel appreciate my concern but feel hamstrung - after all, when a judge asks a question you feel compelled to respond. That's what we've been taught to do.
In response, I offer three thoughts:
Judges should not be asking this question - while well intentioned and aimed at trying to determine the settlement gap, asking where the parties were at when mediation concluded completely undermines the commitment to confidentiality that we all make when we agree to mediate. (ok, I've said it - I feel better already!)
Counsel should move to protect themselves from this question by making it clear at mediation that any final offer made is presented on a without prejudice basis, with a limited lifespan, and that once the deadline for acceptance passes the offer evaporates into thin air.
If counsel are concerned about the probing minds of pre-trial judges, they might consider making a Rule 49 offer after the conclusion of mediation, which can be presented to a judge with a clear conscience.
