ADR Confidentiality & Privilege in ADR 3

Question 1

The 'public policy' exception to ADR confidentiality is most commonly invoked when:

Accepted Answer

Disclosure is necessary to prevent manifest injustice or protect significant public safety interests

Answer

One party to the dispute is a government agency

Answer

The settlement agreement has not yet been signed by all parties

Answer

International law requires transparency in the proceedings

Question 2

Mandatory reporting laws regarding child abuse interact with mediation confidentiality by:

Accepted Answer

Overriding confidentiality to require disclosure of child abuse information regardless of the mediation context

Answer

Being completely superseded by mediation privilege

Answer

Applying only when the mediator holds a mental health license

Answer

Requiring court approval before the mediator may disclose

Question 3

What does conducting settlement negotiations 'without prejudice' mean in ADR practice?

Accepted Answer

Statements made during negotiations cannot be used as admissions or evidence in subsequent proceedings

Answer

The parties permanently waive their right to appeal any resulting decision

Answer

The mediator may share all communications with both parties simultaneously

Answer

The resulting settlement agreement will not be legally binding

Question 4

If a party to a mediation dies before the conclusion of proceedings, their mediation privilege:

Accepted Answer

Remains with their estate or legal representative, who may assert or waive it

Answer

Automatically transfers to their estate without restriction

Answer

Is waived entirely upon the party's death

Answer

Terminates immediately and irrevocably upon death

Question 5

A party most clearly waives mediation privilege when they:

Accepted Answer

Voluntarily disclose privileged mediation communications to a third party outside the mediation process

Answer

Retain legal counsel after the mediation concludes

Answer

File a lawsuit related to the underlying dispute after mediation fails

Answer

Refuse to sign a proposed settlement agreement

Question 6

In the case Folb v. Motion Picture Industry Pension & Health Plans, what significant principle was established for mediation confidentiality?

Accepted Answer

It recognized a federal common law mediation privilege protecting communications in federal proceedings

Answer

It created mandatory federal arbitration confidentiality requirements

Answer

It eliminated mediation privilege in employment-related disputes

Answer

It required all mediators handling federal matters to be licensed attorneys

Question 7

When drafting confidentiality provisions in an ADR agreement, which element is most critical to include?

Accepted Answer

The defined scope of protected communications and the consequences of unauthorized breach

Answer

The anticipated amount of any settlement reached

Answer

The names of all potential witnesses who may be called

Answer

A blanket waiver of all applicable statutory privileges