Suppose you are a mediator and during the mediation, one party, either in a joint or separate session with you, threatens the other party with serious bodily harm or injury if they refuse to settle on the terms proposed. What do you do if anything?
Do you ignore it? Keep quiet? Postpone, terminate, or withdraw from the mediation? Call the police?
Fundamental to mediation is mediation confidentiality. Model Standard of Conduct for Mediators, Standard V covers confidentiality and states, “A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by law.” (Emphasis added.)
Does the “required by law” provide an exception to mediation confidentiality?
California, like many states, has a mandated reporter statute. Penal Code 11165.7 lists over 40 categories of professions deemed mandated reporters, including educators, social workers, peace officers, firefighters, physicians, surgeons, psychiatrists, psychologists, dentists, emergency medical technicians, marriage and family therapists, clergy, and animal control officers. If you are in one of these professions and also a mediator, then you are obliged to report child or adult abuse, abandonment, or neglect. However, neither attorneys nor mediators per se are on this list. So, what does the mediator do?
In 1976, the California Supreme Court held in Tarasoff v Regents Board of the University of California, 17 Cal. 3d.425, 551 P.2d. 334, 131 Cal. Rptr . 14 that a mental health professional had a duty to warn a third party that his patient was threatening that third party with bodily harm. Despite the patient-therapist privilege, the professional had a “duty to protect” the third-party victim by either notifying he police, warning he victim, or taking other reasonable steps to protect the potential victim. (See: Wikipedia)
Should this “duty to protect” apply to mediators? Indeed, while section B of Standard VI on the Quality of Process in the Model Standards of Conduct for Mediators states, “If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps, including, if necessary, postponing, withdrawing from or terminating the mediation,” other standards go further.
Standard VII of the Model Standards of Practice for Family and Divorce Mediators (2000) provides that while the mediator shall maintain confidentiality of all information acquired during the mediation…unless…required … by law, “(C.) The mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threats is likely to be acted upon as permitted by law.”
The Uniform Mediation Act, adopted in 13 states and the District of Columbia (but NOT in California), creates an exception to mediation confidentiality in Section 6(a)(3), providing that there is no confidentiality to “… a threat or statement of a plan to inflict bodily injury or commit a crime of violence.”
In 1997, California adopted Evidence Code sections 1115-1128 covering mediation. Section 1119 provides that all evidence of anything said, all written documents, and all communications “…made for the purpose of, in the course of or pursuant to a mediation…” is neither admissible nor discoverable in a noncriminal proceeding. Note that the protection of mediation confidentiality applies only to the discoverability and admissibility of evidence in a civil proceeding.
While Evidence Code 703.5 provides that a mediator is NOT competent to testify in certain subsequent proceedings as any statement, conduct… occurring in the mediation, an exception exists for conduct that constitutes a crime. In that case, the mediator is competent to testify.
Under a 1990 appellate decision, Howard by Drapkin, 222 Cal. App.3d. 843 (Cal. App. 1990), California grants quasi-judicial immunity to mediators for their alleged acts and/or omissions during a mediation.
In 2010, the Tennessee Alternative Dispute Resolution Commission issued advisory opinion No. 2010-0002 answering whether a mediator may provide a statement to law enforcement or be called a witness when a participant or the mediator is assaulted during mediation.
The Commission responded in the affirmative; the mediator may provide a statement and testify if called as a witness on the theory that the assault was a collateral issue to the mediation. Thus, while the mediator is still bound to uphold confidentiality on the substantive issues discussed during the mediation, they could discuss the collateral issue of the assault.
In California, mediation confidentiality is a rule governing the admissibility and discoverability of what occurred in a mediation in subsequent noncriminal proceedings. Mediation confidentiality seemingly does not apply to collateral criminal issues arising during a mediation. Further, a mediator is competent to testify in a criminal matter and has quasi-judicial immunity for such testimony.
Given the above, what would you do if a party during a mediation threatened serious bodily harm or injury?
…. Just Something To Think About.
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