Mediation and Expectations of Privacy

Mediation is a popular dispute resolution tool.  During a typical mediation, the parties sit down with an impartial mediator who facilitates discussions between the parties with the goal of having them reach a mutually acceptable agreement.  A mediator may help identify issues and options, assist the parties and their attorneys in exploring the needs underlying their respective positions, and upon request, record points of agreement expressed and adopted by the parties.  The mediator does not recommend terms of an agreement.

Parties in a dispute can always engage the services of a mediator before filing a claim in court.   Over the past twenty years, courts have also recognized the utility of mediation and have routinely made referrals to court-appointed mediators in civil cases, notably family matters, but also in relation to business disputes and probate actions.  By using mediation to facilitate settlements, courts can clear their dockets and operate in an efficient manner.

While disputes may be resolved by courts, most people prefer to avoid the expense and lengthy time commitment associated with a trial.   Court records are also generally open to the public, while mediation places a premium on privacy.   Standards of conduct for a mediator, including procedures related to confidentiality, have been incorporated in Maryland law and continue to evolve.

The recently reported Maryland case, Sang Ho Na v. Malinda Gillespie, gives us insight into the matter of confidentiality during a mediation procedure.  The mediation in the case involved a custody dispute between two parents.  Prior to a hearing before a court on custody, the parents attended a private and voluntary mediation.  As a part of this procedure, the parties and their attorneys signed an Agreement to Mediate with the mediator by which they agreed to maintain the confidentiality of statements made and documents created during the mediation.  The parties then proceeded to engage in mediation which ended when a snow storm developed.  Due to the snow, the parties ended their mediation without putting any of the verbally agreed-upon terms into writing.  It was understood by all concerned that the attorneys for the parties would prepare a consent order reflecting the oral agreement reached during their mediation for submission to the court.

After the mediation session ended, the attorneys for the parties attempted to draft a consent order that contained what each party thought was the agreement reached by the parties during the mediation. Unfortunately, the parties could not agree on the wording of the consent order and on the elements of their agreement.  Mr. Na, the Father, believed there was an oral agreement between the parties and wanted to enforce this agreement.  To prove the existence of and the elements of the parties’ alleged agreement, Father filed a Motion to Enforce and sought to use the documents generated during the mediation, along with testimony of the mediator, at an evidentiary hearing before the Circuit Court. Gillespie, the Mother, opposed Father’s Motion and asserted that information generated during the mediation session was confidential and inadmissible in a court proceeding.

What did the court do here?  In the initial ruling on this case, the Circuit Court held that confidentiality is one of the fundamental principals of mediation and that a party can say anything in the mediation without fear that such disclosures can be used against the party.  The Circuit Court further held that anything that came out of the mediation that was not a written agreement is inadmissible and denied Father’s Motion to Enforce.  The Court of Special Appeals affirmed the decision of the Circuit Court, but added some commentary to provide guidance on mediation procedures.  The Court of Special Appeals noted that Father was correct that no Maryland statute or rule protecting mediation confidentiality applies to voluntary private mediation.  Such rules apply to court-ordered mediations.  However, because the parties entered into an Agreement to Mediate, a binding contract to maintain the confidentiality of all communications and documents related to the mediation, information obtained through this particular mediation process is inadmissible in a court proceeding.  Father’s effort to prove the terms of what he thought was an agreement achieved through mediation would be futile because he previously agreed to maintain the confidentiality of the information.

What lessons can be learned from Sang Ho Na v. Malinda Gillespie?  First,note that the freedom of parties to enter into a contract is given great deference.  If parties agree to enter into a private and voluntary mediation and they agree as a part of the procedure to keep information generated during mediation confidential, the court will honor their agreement. Second, note that there are differences in the rules of confidentiality that apply in cases when mediation is purely voluntary between the parties and when mediation is a part of a court-ordered procedure and is governed by Maryland statute and rules.  Although the Court of Special Appeals did not interpret Maryland law with respect to court-ordered mediation procedures, the distinction between these two types of mediations should be considered.  Lastly, while we cannot know the all the details of that occurred in this case, if parties sincerely cannot agree on the specific wording of their settlement, it seems appropriate to continue the mediation and return to the mediation table to try to work through tedious details and achieve a mutually satisfactory agreement.  While the snowy weather obviously made continuation of the mediation session difficult on that particular day, returning to mediation later to clarify and finalize the elements of a settlement agreement likely would have saved these parents a great deal of time and trouble.