Drafting Mediation Privileges: Lessons from the Civil Justice Reform Act

Mediation confidentiality provisions or privileges are now prevalent throughout the United States. Forty-one states have enacted some form of mediation privilege. As part of the Administrative Dispute Resolution Act of 1990, Congress enacted legislation to protect confidentiality in mediations involving federal agencies. An additional source for such provisions is the Civil Justice Reform Act of 1990 (CJRA), which required each federal district court to implement a civil justice expense and delay reduction plan (Plan(s)) by the end of 1993. Those Plans seek to implement mechanisms designed to address causes of excessive expense and delay in the federal courts. A number of the Plans formulated by the district courts include court-annexed alternative dispute resolution (ADR) programs, one of the main delay and expense reduction techniques which Congress sought to have the districts consider. A significant number of districts have implemented mediation programs. These mediation programs vary widely in the confidentiality protection offered to mediation proceedings. This Article analyzes the Plans and local court rules of a number of districts to demonstrate some of the problems that can arise when drafting mediation privileges. Section I reviews the provisions of the CJRA pursuant to which some of the districts promulgated confidentiality provisions. Section II discusses the importance of confidentiality provisions in mediation programs and evaluates some of the objections that have been lodged against creating mediation privileges. Section III then reviews the confidentiality provisions that exist in various court-annexed mediation programs in light of these objections and raises questions about the scope and wording of those provisions. Finally, Section IV suggests a possible alternative to the types of confidentiality provisions that currently exist in these court-annexed mediation programs