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54 U. Kan. L. Rev. 1419 (2005-2006)
Protecting Confidentiality in Mediation: A Promise Unfulfilled

handle is hein.journals/ukalr54 and id is 1429 raw text is: Protecting Confidentiality in Mediation: A Promise
Sarah Rudolph Cole*
In 2005, mediation has secured a permanent place in the pantheon of
dispute resolution mechanisms. Litigants now commonly participate in
mediation at some point during the life of their legal dispute. Both
legislatures and courts at the federal and state levels have embraced
mediation as a preferred dispute resolution mechanism and have
wholeheartedly accepted the theory that protecting the confidentiality of
mediation communications is essential to the success of the mediation
process.1      Only     if  parties   are   precluded     from    using    mediation
communications in subsequent proceedings, the argument goes, will they
be sufficiently candid during mediation so that the parties' overlapping
bargaining ranges can be discovered and the case settled.2
Squire, Sanders & Dempsey Designated Professor of Law, Ohio State University, Moritz
College of Law. This Article benefited from comments by Douglas R. Cole, Stephen Ware, Ellen E.
Deason, Eileen Pruett, and the Moritz faculty members who participated in a faculty workshop.
Thanks also to the Kansas Law Review, and to Linda Mindrutiu and David Shelton, for their
excellent work. This Article was prepared as part of the University of Kansas Law Review 2005
Symposium on Secrecy and Transparency in Dispute Resolution.
1. Courts considering whether mediation communications should be privileged conclude that
they should and that confidentiality is the key to ensuring that mediation programs are successful.
See Clark v. Stapleton Corp., 957 F.2d 745, 746 (10th Cir. 1992) (stating that confidentiality is
essential to a settlement program); Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d
928, 930 (2d Cir. 1979) (It is essential to the proper functioning of the Civil Appeals Management
Plan that all matters discussed at these conferences remain confidential.); Willis v. McGraw, 177
F.R.D. 632, 633 (S.D.W. Va. 1998) (holding that confidentiality of mediation proceedings precluded
court from hearing motion to enforce settlement); Doe v. Nebraska, 971 F. Supp. 1305, 1307 (D.
Neb. 1997) (stating that confidentiality in mediation is needed so that parties can have an open,
candid discussion about the dispute); Bernard v. Galen Group, Inc., 901 F. Supp. 778, 784
(S.D.N.Y. 1995) ([B]reach of the applicable confidentiality provisions threatens the integrity of the
entire program.). Legislatures have wholeheartedly embraced mediation confidentiality. Virtually
every state has adopted some type of mediation privilege. There are over 200 state statutes
addressing mediation confidentiality. See SARAH R. COLE, CRAIG A. MCEWEN & NANCY H.
ROGERS, I MEDIATION: LAW, POLICY AND PRACTICE apps. A-B (2d ed. 1994) & (Supp. 2006). In
addition, Congress passed the Alternative Dispute Resolution Act of 1998, which requires every
federal district court to adopt a local rule governing mediation confidentiality. 28 U.S.C. § 651(b)
(2000). As a result (although this was true before the Act was passed), federal court rules protecting
the confidentiality of mediation have proliferated.
2. See Doe, 971 F. Supp. at 1307 (stating that if mediation communications were admissible in


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