Mediation Confidentiality versus Inadmissibility

Confidentiality at mediation has been a hallmark of the process since 1991 when mediation began in our North Carolina Courts.  Further, over the years both our appellate courts and the North Carolina Industrial Commission have supported the understanding that what happens at mediation is confidential as to the mediator and inadmissible in any proceeding unless there is an agreement enforcement or sanction issue.

In agreement enforcement cases the Industrial Commission and the Courts allow participants to testify about what happened at mediation; however, the mediator is only allowed to indicate that an agreement was signed in their presence at the conclusion of mediation.  No other mediator testimony is allowed.

In sanction issues, particularly if mediator sanctions are at issue, then the mediator may testify about what happened at mediation.

A recent Advisory Opinion from the North Carolina Dispute Resolution Commission 12-22 provides further clarification about the difference between "confidentiality" and "inadmissibility."  

According to the North Carolina Standards of Conduct for Mediators and most mediation program legislation and rules, the mediator is required to keep all that occurs at mediation confidential (except as noted above).  Note - this is one of the duties of the mediator - not the parties or counsel.  

Inadmissibility is different from confidentiality.  What is said and done at mediation is not admissible in a later proceeding. This does not preclude parties and their lawyers from talking about what happened at mediation.  

This is the clarification contained in NC DRC Advisory Opinion and all mediators should clarify this distinction in their opening remarks. Counsel should make it clear to their clients that what is said and done in mediation may be inadmissible, but may not be confidential.

What Would Kate Do?!

Kate, Kate, Kate – What were you thinking?!  Like all reflective mediator practitioners, I’ve been watching (studying) the new USA Network drama – Fairly Legal – to learn new mediation skills from the lead and all star mediator Kate Reed. In the first few episodes we’ve learned that mediation is about a win-win resolution, that the mediator is impartial, and that the mediator’s job is to learn about the problem and then fix it.  And that the mediator can do just about whatever they want to get the case/dispute/conflict settled.  Anything goes for ratings!

Some of Kate’s mediation skills/language rings true. She says “win-win” (I call this “all win”), the mediator is impartial and the idea of the mediator helping get matters resolved.  However, for me the operative word is “helping.” Mediators don’t have the power of a decision maker and can’t generally come up with a better resolution than that of participants.  In fact, that’s what mediation is supposed to be about – the mediator helping, supporting, encouraging, etc., participants to come up with their own ideas for resolving the dispute.

I’m all for the mediator being active in helping participants figure out how to resolve their conflict/dispute; however, I don’t consider the mediator role as the “fixer” like Kate.  I certainly do all I can to assist folks and I do want mediations I conduct to reach a mutually agreeable resolution yet, if I’ve run a quality process, then I’ve been successful.  After all, I can’t force people to settle/resolve their dispute. 

I also want Kate to "own" her mediation process.  Just about every mediator I know starts the mediation with some type of introduction, some type of mediator opening, but Kate just walks in the conference room, people start talking and even swinging punches!  It might add to the drama, but it sure takes away from the power of mediation.

So, I’ll keep watching Kate and try to add to my mediation skills.  Maybe I need some high heels for smashing watches?  Or perhaps not!  Oh well, here’s hoping we get more mediation process from Kate and the folks at USA network.

Immunity to Change Mediation Decision Making

I attended an excellent legal education program earlier this spring (NCBA - The Resilient Lawyer) where Robert Keegan education professor from Harvard and author of the recent book Immunity to Change, led a three-hour program devoted to change. Based on more than 25 years of research and practical teaching, he explained how we continue to do things and not do things in opposition to our stated improvement goals because we actually have hidden commitments and big assumptions that drive our behavior.

For example your goal might be to lose 10 pounds yet you keep eating that muffin, doughnut etc. It turns out you are eating it because you have a hidden commitment, perhaps based in your childhood, that says "you will never go hungry." Thus, when you try to change, there is a push/pull, a foot on the gas and brake at the same time. Keegan explained that in order to change one must fully understand the "problem," by uncovering the hidden commitments and considering whether there is room to expand our big assumptions. Will we actually go hungry if we don’t eat that muffin?

While mediating cases, I consider decisions made one form of change. People, attorneys, insurance professionals state goals, they partake in activities to pursue those goals and they may encounter hidden commitments and big assumptions that get in their way.

In a workers’ compensation mediation, the injured worker might say, "I'll never work again." The carrier might say, “the claimant is not hurt as bad as they say.” These forces collide - commitments both hidden and open drive the actions of each. In mediation, we should explore these commitments. We can ask participants to consider beyond their big assumptions. For the worker, what might a return to work be like? For the carrier, what if the injury is more significant than thought?

In either case, as mediators, we should be willing to explore the human condition of our participants. What are the barriers to change, to settlement and resolution? How can we change "immunity to change" to an ability to change?

Linking Turns

Back in February I went skiing and took a lesson to update my turns. Today's skis are built to turn with a parabolic arc built in while yesterday's skis were mostly straight and pretty hard to turn. During the lesson I had to unlearn old habits and listen closely as my instructor encouraged me to link my turns, from edge to edge, using the skis arc. I was encouraged to flow with the mountain and with my skis rather than fighting with them.

This idea of linking turns shows up in mediation. Each step of the process can be linked and I believe it is part of our job as mediators to manage and facilitate the links. When we ask a specific question or inquire about topics to discuss or ask if participants want to meet privately, it should be done with a larger mediation process goal in mind. We should link our mediator actions to both our overarching mediation approach and be in conjunction with the needs and requests of participants. As we link steps of the mediation process together this also helps participants connect with the process, and in so doing, the process works its magic and facilitates decision making.

Next mediation - think about linking turns down the mountain.

What's In a Name?

Do you ask everyone at mediation to say their name out loud as part of your mediator opening? This may seem like a silly question - of course you do. We all ask mediation participants to introduce themselves as this tells us who is in the room and allows participants to meet. However, you might not know that the act of saying your name can also help your participants work better together.

I heard Atul Gawande, general surgeon at the Brigham and Women's Hospital in Boston and author of "The Checklist Manifesto: How to Get Things Right" on NPR recently and he described creating a checklist for the operating room. Among other items, each person in the room states their name. This simple act helps create a connection, a group that can more effectively handle complex tasks.

Just as mediation can be a complex task make sure you hear those names at your next mediation.

Try Something New

I was at the beach last week on Fall Break with my family. We had our canoe and paddled the sound. Then my 11 year old son mused, “Can we take the canoe into the ocean?” My first thought was “no way” and then I thought more about it and came to “why not!” The challenge was figuring out how to get the canoe from the sound to the ocean several blocks away.

We figured that out pretty quick. Just stick it into our CRV, with it sticking out the back and walk with it to the beach. Then my son and I carried it to the shore. And then we headed into the ocean. It was pretty calm so we made it through the breakers and then out into the ocean. On our return we tried to ride the waves in, turned a bit and then capsized and unceremoniously dumped onto the shore. We were fine except for being wet! So we did it again and again and again. On the fourth try we rode all the way in!

In your next mediation try something different. Do something adventurous. Instead of thinking “no way” think “why not!” Give your idea a try. Taking risks as a mediator, with planning and ground work completed, usually leads to opportunity.

Mediators Gone Wild !

If you mediate workers' compensation claims in North Carolina (or any type of claim for that matter) - DON'T TESTIFY (#%***!!) about what happened at mediation!

Two recent cases from the North Carolina Industrial Commission spotlight mediators behaving, in my opinion, badly! It's not quite "girls/boys gone wild;" however, we as mediators must protect the integrity of the mediation process, must maintain the confidentiality of the mediation and should follow the rules!!

So, what's this rant about?

In Simpson v Sutton Masonry, IC 569582, 9/9/09, the IC determined whether a mediated settlement agreement and the subsequent compromise settlement agreement included an agreement to pay for certain medical care if the care was not provided by NC State Vocational Rehabilitation. As part of the IC's determination, the mediator testified about his interpretation of the mediated settlement agreement. This is beyond the scope of the mediator role. The parties and their attorneys can provide this information when the NCIC is reviewing an agreement for enforcement. In fact, by NCIC rule, the mediator may only testify as to who was present and, if an agreement was reached and signed, that the agreement was signed in their presence. That's it. No more. Don't do it.

As for the second case. It's even more of a mess.

In Allred v Exceptional Landscapes, Inc., IC 650940, 8/27/09, the IC reviewed whether to approve a mediated settlement agreement and whether the conduct of former counsel and/or the mediator violated the Workers' Compensation Act and/or Rules of the Industrial Commission. Heady stuff indeed. I'm not going to go into details; however, suffice it to say that this is a cautionary tale and squarely highlights the mediator role. Don't do the heavy lifting yourself. Facilitate the work of the participants to enable them to make informed choices about how to proceed.

Enough. I'm back and will start writing on a weekly basis. Happy mediating.

Why We Do This Work

I had two recent mediations that touched on the intangibles of being a mediator. In the first, after several hours of discussion both together and in private sessions, it became clear to all that a settlement was not possible. While meeting with the claimant and lawyer, the claimant said "I really appreciate what you've done today." I of course said "thank you" and then asked if they would say a bit more about what they appreciated.

The response was "you are really listening to me, I feel heard." Even though the case was not headed toward settlement the claimant felt good about the mediation process and my work in that role. We had connected and they felt heard. Now we talk a lot as mediators about listening and here it was, right in front of me.

In a second mediation, I was in a private meeting with the claimant and counsel when I reported that the other party had agreed to their proposal. They had settled their claim. The claimant was happy, got up and gave me and her lawyer a hug. She physically looked like a large weight had been lifted off her shoulders.

So, in one week, I was really listening and got a hug. This is part of why I do work as a mediator. How about you, why are you a mediator?

Waiting is . . .

"Waiting is" - These are the words of Michael Valentine Smith. A human raised by Martins in Robert Heinlien's classic science fiction novel, Stranger in a Strange Land. For Michael, "waiting" was a completed act. I believe the same can be true for mediators.

In a recent workers' compensation mediation, the claimant had returned to a new job earning a wage greater than in the employment where injured. The discussion ranged over medical issues and impairment ratings as well as strong feelings by the injured worker about treatment by the company post injury. We talked, we negotiated, I listened and waited.

The talk focused on settlement and after several offers and counter offers the participants had shared very different ideas about resolving the claim. The numbers were close; however, not that close and while settlement was possible, it did not seem likely to the participants. (This they shared in private caucus.) And still we talked and considered and continued with the mediation process.

We spent many hours together that day and there were several opportunities for me as mediator to say "let's stop;" however, I waited for the mediation process to do its work. Eventually, the injured worker decided that the settlement offer was enough, that it was time to move on both literally, i.e., the length of time of the mediation and the potential time at hearing and, figuratively, it was time to let the hard feelings go.

Thus, the process works if you give it time. If you continue to hold the space for the participants to do the hard work of considering their dispute and seeking to resolve it. The mediation process is - like waiting is.