ADR Confidentiality & Privilege in ADR 2

Question 1

The 'crime-fraud' exception to ADR confidentiality permits disclosure when:

Accepted Answer

Mediation communications were made in furtherance of an ongoing or planned crime or fraud

Answer

A party committed fraud prior to the dispute arising

Answer

Either party is facing unrelated criminal charges

Answer

The mediator suspects a party of dishonesty

Question 2

How does confidentiality in arbitration generally differ from confidentiality in mediation under U.S. law?

Accepted Answer

Mediation confidentiality is typically stronger due to broader statutory privilege, while arbitration confidentiality often depends on contract or institutional rules

Answer

Arbitration is fully public while mediation is always confidential

Answer

Arbitration always requires a confidentiality agreement while mediation does not

Answer

Both processes have identical confidentiality protections under federal law

Question 3

What is the primary purpose of a 'caucus' session regarding confidentiality in mediation?

Accepted Answer

To allow each party to communicate privately with the mediator without the other party present

Answer

To create an official record of all communications for court review

Answer

To allow the mediator to share all information freely with both parties

Answer

To satisfy mandatory statutory disclosure requirements

Question 4

When a mediator receives a subpoena to testify about mediation communications, the mediator should generally:

Accepted Answer

Assert the mediation privilege on behalf of all participants and seek a protective order

Answer

Comply fully to respect the court's authority

Answer

Disclose only information the requesting party consented to share

Answer

Testify about procedural matters only, never substance

Question 5

Under the Uniform Mediation Act, which scenario would most likely allow disclosure of a mediation communication?

Accepted Answer

All parties and the mediator agree to waive the privilege and consent to disclosure

Answer

A party's emotional distress is revealed during mediation

Answer

The communication is relevant to pending related litigation

Answer

One party requests disclosure solely for their own benefit

Question 6

How does the attorney work product doctrine interact with mediation preparation materials?

Accepted Answer

Documents and communications prepared in anticipation of mediation may be protected from discovery as attorney work product

Answer

Attorneys cannot represent clients during mediation

Answer

Clients must share all privileged communications with the mediator

Answer

Attorney-client privilege is automatically waived upon entering mediation

Question 7

Which institutional rules impose confidentiality obligations on arbitrators conducting commercial disputes?

Accepted Answer

American Arbitration Association (AAA) Commercial Arbitration Rules

Answer

Federal Rules of Civil Procedure

Answer

Uniform Mediation Act

Answer

Federal Arbitration Act Section 7