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PRINCIPLES AND GUIDELINES FOR INFORMATION OBTAINED A. If mediation communication is: When may a mediator make a [1] report, [2] assessment, [3]
THROUGH MEDIATION PROCEEDINGS 1. In an agreement evidence by a record authenticated by evaluation, [4] recommendation, [5] finding or [6] other
all parties to the agreement communication regarding a mediation to a court or agency or other
1. Information obtained through mediation shall be privileged and 2. Available to the public OR That is made during a session authority that make a ruling on a dispute subject of a mediation?
confidential of a mediation which is open OR Required by law to be • GENERALLY not allowed
2. A party, mediator or non-party participant may: open to the public • EXCEPTIONS
a. refuse to disclose AND 3. Threat or statement of a: 1. Where the mediation occurred or has terminated
b. prevent any other person from disclosing a mediation - Plan to inflict bodily injury Where a settlement was reached
communication - Commit a crime of violence 2. As permitted to be disclosed under Sec 13 (i.e. facts
3. Confidential information shall 4. Internationally used to which are likely to affect impartiality)
a. not subject to discovery - Plan a crime
b. inadmissible in any adversarial proceeding, whether - Attempt to commit or commit a crime PERMITTED DISCLOSURES & CONFLICT OF INTEREST Sec 13
judicial or quasi-judi - Conceal an ongoing crime or criminal activity
4. In an adversarial proceeding, the ff people can’t be compelled to 5. Sought or offered to prove or disprove A. Duties before acceptance of mediation
disclose confidential info: - abuse, neglect, abandonment, or exploitation in a 1. Make reasonable inquiry to determine whether there are
a. Parties to the dispute proceeding in which a public agency is protecting any known facts a reasonable individual would consider
b. Mediator/s the interest of an individual protected by law; likely to affect impartiality of mediator e.g.
c. Counsel for the parties Exception does not apply where: a. Financial or personal interest in the outcome
d. Non-party participants - a child protection matter is referred to mediation by of the mediation
e. Any person/s hired/engaged in connection with a court or b. Any existing or past relationship with a party
mediation as secretary, stenographer, clerk or asst - a public agency participates in the child protection or foreseeable participant in the mediation
f. Any other person who obtains or possesses confidential mediation 2. When to disclose? As soon as practical before acceptance
info by reason of his/her profession 6. Sought or offered to prove or disprove a claim or of mediation
5. Protections of this Act shall continue to apply even if a mediator complaint of professional misconduct or malpractice filed
is found to have failed to act impartially against mediator in a proceeding; or B. If mediator learns fact in A(1) only after acceptance of
6. Mediator may not be called to testify to provide information 7. Sought or offered to prove or disprove a claim of
mediation disclose it as soon as practicable
gathered in mediation. complaint of professional misconduct of malpractice filed
against a party, nonparty participant, or representative of
Mediator shall disclose his qualifications at the request of any
WAIVER OF CONFIDENTIALITY a party based on conduct occurring during a mediation.
party
• Act does not require any special qualifications by
A. How to waive privilege arising from confidentiality of B. Court/admin agency finds [1] after hearing in camera that [2]
background or profession UNLESS required by the:
information? party seeking discovery has shown that [3] evidence is not
o Mediation agreement OR
1. By the mediator and mediation parties: otherwise available, [3] there is a need for the evidence which
o Mediation parties
• In a record substantially outweighs interest protecting confidentiality and
• Orally during a proceeding [4] mediation communication is sought/offered in
2. By a non-party participant 1. Court proceeding involving a crime or felony
2. Proceeding to prove claim/defense the under the law is
• Only if information is provided by such non-party
sufficient to reform/avoid a liability on a contract arising
participant
out of the mediation
B. Effects of waiver of confidentiality
C. Mediator may not be compelled to:
• If another person is prejudiced and it becomes necessary
- Provide evidence of mediation communication
to respond to the representation of disclosure Party - Testify in such proceeding
who discloses is precluded from asserting privilege under
Sec 9 to bar disclosure of the rest of information which D. If mediation communication not privileged under an exception
are necessary to a complete understanding of the in A or B only portion necessary for the application of the
previously disclosed information exception for nondisclosure may be admitted (i.e. limited
purpose of an exception)
• Effect: admission of particular evidence =/ admissible for
any other purpose
enforcement
If parties so desire petition may be filed by any
prepare settlement the settlement agreement.
DEPOSIT settlement of the parties with same court
agreement by: [1] parties which will proceed summarily to
prepare
deposit
with assistance of counsel & hear the petition, in accordance
[2] mediator. 2. Mediator CERTIFIES s/he Clerk of RTC where the place
with rules as SC may promulgate
explained the contents of the where one party resides.
settlement to the parties in a 2. Treat “settlement agreement”
as an “arbitral award”
2. Parties and counsels: language known to them
•HOW?
HOW? By parties’ agreement
[1] endeavor to make terms that mediator shall become
and condition complete AND sole arbitrator
[2] make adequate provisions •EFFECT?
EFFECT? Subject to
for the contingency of bread enforcement under RA 876,
despite provisions of EO 1008
to avoid conflicting
for mediated dispute outside
interpretations of CIAC
agreement.