ADR Confidentiality & Privilege in ADR 2 — Questions and Answers
Question 1: The 'crime-fraud' exception to ADR confidentiality permits disclosure when:
- A party committed fraud prior to the dispute arising
- Mediation communications were made in furtherance of an ongoing or planned crime or fraud (Correct answer)
- Either party is facing unrelated criminal charges
- The mediator suspects a party of dishonesty
Correct answer: Mediation communications were made in furtherance of an ongoing or planned crime or fraud
The crime-fraud exception allows disclosure when the mediation communications themselves were used to plan, commit, or conceal a crime or fraudulent act.
Question 2: How does confidentiality in arbitration generally differ from confidentiality in mediation under U.S. law?
- Arbitration is fully public while mediation is always confidential
- Mediation confidentiality is typically stronger due to broader statutory privilege, while arbitration confidentiality often depends on contract or institutional rules (Correct answer)
- Arbitration always requires a confidentiality agreement while mediation does not
- Both processes have identical confidentiality protections under federal law
Correct answer: Mediation confidentiality is typically stronger due to broader statutory privilege, while arbitration confidentiality often depends on contract or institutional rules
Mediation is protected by broader statutory privilege in most states, while arbitration confidentiality typically depends on contractual terms or institutional arbitration rules rather than comprehensive statutory protection.
Question 3: What is the primary purpose of a 'caucus' session regarding confidentiality in mediation?
- To allow each party to communicate privately with the mediator without the other party present (Correct answer)
- To create an official record of all communications for court review
- To allow the mediator to share all information freely with both parties
- To satisfy mandatory statutory disclosure requirements
Correct answer: To allow each party to communicate privately with the mediator without the other party present
Caucus sessions provide a confidential channel for private communication between the mediator and one party, with information shared only with the other party at the disclosing party's discretion.
Question 4: When a mediator receives a subpoena to testify about mediation communications, the mediator should generally:
- Comply fully to respect the court's authority
- Assert the mediation privilege on behalf of all participants and seek a protective order (Correct answer)
- Disclose only information the requesting party consented to share
- Testify about procedural matters only, never substance
Correct answer: Assert the mediation privilege on behalf of all participants and seek a protective order
A mediator's professional and ethical obligation requires protecting mediation confidentiality by asserting privilege and seeking court protection rather than voluntarily disclosing communications.
Question 5: Under the Uniform Mediation Act, which scenario would most likely allow disclosure of a mediation communication?
- A party's emotional distress is revealed during mediation
- All parties and the mediator agree to waive the privilege and consent to disclosure (Correct answer)
- The communication is relevant to pending related litigation
- One party requests disclosure solely for their own benefit
Correct answer: All parties and the mediator agree to waive the privilege and consent to disclosure
The UMA allows disclosure when all privilege holders—the parties and the mediator—collectively consent to waive their respective privileges.
Question 6: How does the attorney work product doctrine interact with mediation preparation materials?
- Attorneys cannot represent clients during mediation
- Documents and communications prepared in anticipation of mediation may be protected from discovery as attorney work product (Correct answer)
- Clients must share all privileged communications with the mediator
- Attorney-client privilege is automatically waived upon entering mediation
Correct answer: Documents and communications prepared in anticipation of mediation may be protected from discovery as attorney work product
Materials prepared by attorneys in anticipation of mediation may qualify as attorney work product, shielding them from opposing party discovery.
Question 7: Which institutional rules impose confidentiality obligations on arbitrators conducting commercial disputes?
- Federal Rules of Civil Procedure
- American Arbitration Association (AAA) Commercial Arbitration Rules (Correct answer)
- Uniform Mediation Act
- Federal Arbitration Act Section 7
Correct answer: American Arbitration Association (AAA) Commercial Arbitration Rules
The AAA Commercial Arbitration Rules include specific confidentiality obligations for arbitrators regarding the proceedings, deliberations, and award.
ADR Confidentiality & Privilege in ADR 2
The 'crime-fraud' exception to ADR confidentiality permits disclosure when: