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

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?

Accepted Answer

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

Answer

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?

Accepted Answer

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

Answer

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:

Accepted Answer

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

Answer

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?

Accepted Answer

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

Answer

The UMA allows disclosure when all privilege holders—the parties and the mediator—collectively consent to waive their respective privileges.

(ADR) Alternative Dispute Resolution Certification Practice Test

(ADR) Alternative Dispute Resolution Certification Practice Test

ADR Confidentiality & Privilege in ADR 2