Bill would add private-mediator privilege
Posted: 7:51 pm Tue, February 28, 2012
Daily Record Legal Affairs Writer
ANNAPOLIS — Private mediation proceedings would have the same guarantee of confidentially as communications with an attorney or a physician, under legislation a Senate committee considered Tuesday.
The proposed Maryland Mediation Confidentiality Act would prohibit discussions, including admissions and apologies, made during private mediation sessions from being disclosed in court by the parties to a dispute, except under very limited circumstances, such as if someone’s safety were at stake from nondisclosure.
Under current law, only court-ordered mediation proceedings have a guarantee of confidentiality.
Veteran mediators who spoke in support of the proposal told the Senate Judicial Proceedings Committee that confidentiality is essential to a successful mediation, which relies on the willingness of opposing parties to speak candidly.
Parties must be assured that they can “discuss things openly and not have it come back and bite them” in court, said mediator David A. Simison, chair-elect of the Maryland State Bar Association’s Alternative Dispute Resolution Section.
Currently, the confidentiality of private mediation is often presumed but not guaranteed under Maryland law, said Roger Wolf of the Center for Dispute Resolution at the University of Maryland Francis King Carey School of Law. A judge would have authority to compel a private mediator’s testimony if the case went to trial, he added.
The legislation, Senate Bill 856, would bring “certainty in an area where there is uncertainty,” Wolf said.
Under the measure, mediators and the parties to the proceeding could be compelled to disclose what was said during the mediation only if a judge determines disclosure is “necessary to prevent a manifest injustice or harm to the public interest,” which is “so great as to “outweigh the integrity of mediation proceedings.”
Mediators also would not be bound by confidentiality if a party sued them for malpractice, much as a client or patient waives the privilege when suing an attorney or doctor.
Sen. Jamin B. “Jamie” Raskin, the bill’s sponsor, said creating a private mediator privilege is “necessary to the success of mediation.” The legislation will enable people to “speak freely and it won’t be used against them later,” the Montgomery County Democrat added.
Nobody testified against the bill during the committee hearing.
However, supporter Stephen E. Moss voiced concern with a provision that would define a mediator as someone who had “completed at least 40 hours of basic mediation training.”
That requirement could foment litigation, said Moss, a veteran mediator. An unhappy party might argue that the mediation was not covered by the confidentiality provision because the mediator lacked the requisite training, he said.
“This [40-hour requirement] is making this a bad bill,” Moss told the committee. “Somebody is going to litigate this issue.”
Moss suggested that the requirement could simply be deleted from the bill.
But Wolf said some training or experience should be applied to the definition of mediator before the law gives that individual the “extraordinary protection of confidentiality.”
“There can be a danger,” Wolf said. “We have to have some kind of standard here.”
Raskin suggested that the requirement could be that lawyers may be mediators, even without the training, thus creating a bright-line standard.
But Wolf rejected that suggestion, saying lawyers are often ill-equipped to be mediators.
Lawyers “have been trained to be advocates,” Wolf said. “It’s training, not degree” that makes a good mediator, he added.
Raskin, a professor at American University’s Washington College of Law, disagreed in part.
He said legal training now often includes classes in alternative dispute resolution.
“They’re not just trained to be courtroom assassins,” he said.
An identical bill has been introduced in the House of Delegates. Del. Kathleen M. Dumais, D-Montgomery, is the chief sponsor of House Bill 762.