Friday, April 14, 2006

Change proposed to Massachusetts mediation confidentiality statute which would eliminate training requirement for mediators

Bar association proposes changes to Massachusetts mediation confidentiality statuteIn a move that has stunned members of the closely-knit alternative dispute resolution community here in Massachusetts, the Boston Bar Association (BBA) has announced that it has drafted a proposed amendment to the Massachusetts statute protecting mediation confidentiality and will hold a meeting on May 9 to provide stakeholders with an opportunity to submit their comments.

Together with the text of the proposed draft, the BBA has also released a Statement of Purpose explaining its reasons for developing this draft.

The statute as currently written applies only to mediators who enter into a written agreement with the parties and meet certain threshold requirements, including the completion of 30 hours of mediation training.

The BBA’s proposed draft, which would amend the confidentiality statute to codify certain public policy exceptions to confidentiality, omits entirely the training requirement for mediators and does not require a written agreement between the mediator and the parties. The proposed amendment defines a mediator merely as "an individual who conducts a mediation".

These omissions would allow anyone at all, even those who have had no mediation training whatsoever, to be treated as mediators for purposes of the confidentiality statute. Theoretically then virtually anyone could assert this privilege and claim to be a mediator or a party to a mediation, creating an evidentiary nightmare for courts.

Reaction from mediators has been overwhelmingly negative. Many believe, as I do, that, if enacted, the BBA’s proposed amendment with its omission of training requirements for mediators would undo years of effort by many in the ADR field to improve the quality and integrity of mediation services and build public confidence in the profession. These efforts more recently included the 2003 addition of Rule 8, "Qualifications Standards for Neutrals", to the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution. (Rule 8 sets forth training requirements for neutrals receiving court referrals and specify a minimum of 30 hours of training for mediators, together with a court orientation.)

Mediators I have spoken with are deeply troubled that the BBA did not obtain input from the broader ADR community in preparing this draft, an omission many view as inexplicable in light of the emphasis mediators place on collaborative efforts and transparency. Sentiment runs strong that any changes to Massachusetts law concerning the practice of mediation should occur only with full and public participation by and input from all stakeholders across the Commonwealth.

What the fate of the proposed amendment may be remains unseen, although given the reaction of mediators so far, it’s unlikely that this version will ever become law. Stay tuned.