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- Title
Confidentiality and Privilege for Family and Child Protection Mediation: A Roadmap for Navigating the Innovation, Inconsistency and Confusion.
- Authors
Tetunic, Fran; Firestone, Gregory
- Abstract
This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the mediator, and the difference between mediation confidentiality and privilege. Further, it will discuss the confusion and inconsistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the protection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand and reap the benefits of mediation. Key Points for the Family Court Community: Considerable confusion in mediation communication protection definitions highlighted.Inconsistent state protection of mediation communications demonstrated and examples provided.Privilege and confidentiality are most common mediation communication protections utilized.Privilege limits admissibility of mediation communication in court.Parties and others may have a privilege to prevent disclosure of mediation communications in court.Confidentiality limits mediation disclosures outside a proceeding unless the parties waive otherwise.Parties need to know if mediation communications are privileged and/or confidential or otherwise protected.Professionals and the court need to clearly inform parties about mediation communication protection.A roadmap to determine when a mediation communication is protected is provided.A fact pattern analysis of protection of mediation communication utilizing roadmap is demonstrated.
- Subjects
PRIVILEGE (Social sciences); CONFIDENTIALITY in mediation; ROAD maps; INCONSISTENCY (Logic); DOMESTIC relations; DISCLOSURE laws
- Publication
Family Court Review, 2020, Vol 58, Issue 1, p46
- ISSN
1531-2445
- Publication type
Article
- DOI
10.1111/fcre.12455