Tuesday, February 15, 2005

MASSACHUSETTS SUPERIOR COURT DECISION SPARKS RESPONSE FROM ADR PRACTITIONERS

A spirited editorial captioned “The Importance of Keeping Mediators’ Statements Confidential” appears in the February 14, 2005, edition of Massachusetts Lawyers Weekly. Authored by Eric Green, Natasha Lisman, and Jeffrey Stern, well known figures in the Boston ADR community, and supported by other ADR practitioners including Jim McGuire and Paul Finn, the editorial expresses deep concern over Massachusetts Port Authority v. Employers Insurance of Wausau, the Massachusetts Superior Court decision discussed on this blog in a posting dated January 18, 2005. (In that case the judge cited statements made by mediators during the course of three separate mediations as evidence of a defendant's bad faith refusal to settle for failing to heed the advice of mediators.)

The authors warn of the threat this decision poses “to the integrity and effectiveness of mediation as a method of dispute resolution” because of its potential impact on confidentiality, a defining principle of mediation practice.

As the authors point out,

...as lawyers, judges, legislatures, scholars and parties acknowledge, confidentiality of mediation is essential for its success. Settlement requires that the parties and the mediator be free to engage in candid, unbridled discussions about the case without fear that something they say in mediation can later be used in a subsequent proceeding.

To permit such subsequent use, as was done in the MassPort case, will cast a deadly chill and severely impair the mediation process and all its important benefits...The admission and use of the three mediators’ statements in the MassPort case are likewise inimical to [the Massachusetts mediator confidentiality statute] and its underlying policy and, if permitted to stand unchallenged and uncorrected, could lead to long-lasting damage to a vital instrument of policy and justice—the unhampered and confident use of private means of dispute resolution such as mediation.

Clearly there is much at stake in this case for the mediation field. The threat posed by this decision to public confidence in mediation and other forms of dispute resolution should not be underestimated. Massachusetts courts should be in the business of promoting, not undermining, the important public policy considerations that underpin the Massachusetts confidentiality statute.

Given that this case has attracted the attention of such luminaries as Eric Green and Jim McGuire, an appeal resulting from the MassPort case will undoubtedly result in a flurry of amicus curiae briefs from leaders in the ADR field protesting the MassPort decision. The ADR community is not going to take this one lying down.