Why Keeping It Closed Opens It Up

By Laura Melton Tucker, April 2nd, 2009

Listen to this entry.

One of the key elements of mediation is whether or not the conversation behind closed doors will be off-limits to the court. Anyone entering mediation should understand what this means.

Mediations are either open or closed. For reasons that will soon become apparent, the mediations I conduct are closed; that is, the parties involved agree not to subpoena one another or the mediator to go before a judge and describe what was said during the mediation session. Why would someone in an open mediation issue a subpoena? Let’s imagine a hypothetical case. Two farmers are mediating over a spoiled lot of corn. One farmer rented grain bin space from the other but his entire lot of corn was ruined when the grain bin dryer failed. During the mediation, the grain bin owner, in an attempt to move the discussion forward, admits that he never responded to a dryer-part recall notice that came in the mail. He meant to have the part replaced, but he forgot about it. He wants to pay his fair share to restore his reputation and do business with this farmer again. But his good intentions are foiled. The farmer of the ruined corn wanted this information to build his case in court against the grain bin owner. Instead of a good faith negotiation, the mediation session was a fishing expedition for the farmer whose crop was ruined. If the mediation had been closed, the two farmers might have had a chance to resolve their dispute and do business again. In a closed mediation, though both parties can discuss what was said with their lawyers, they can’t use statements made during the mediation against one another in court. Mediations don’t always end in agreement. Some disputes must be settled in court despite hard work at a mediation table, but, going into a mediation that is closed from the outset suggests that all of the participants have the same goal – to stay out of court if possible.

All mediations, whether open or closed, are confidential. The mediator is ethically bound to protect the privacy of the clients. The mediator won’t and can’t discuss the case with anyone, unless, of course, the clients direct her to, or, in the case of an open mediation, the mediator is subpoenaed. And, it should be noted, if, during a family mediation the conversation reveals that one of the spouses or the children may be in danger, then the mediator may breach confidentiality to report her concerns.

Why do most mediators, including myself, conduct closed mediations? In order for clients to move toward agreement, there must be a feeling in the room of openness and transparency. This doesn’t mean that the parties necessarily believe each other’s story. But, when mediation works, they hear one another, explore the possibilities that might lead to accommodating each other’s needs, and work toward generating options that they can both live with. There is always an emotional landscape that the parties navigate. But, in transformative mediation, (which I’ll describe more thoroughly in my next blog ) a closed session is essential for the parties to work together in good faith. Here’s the takeaway: Being able to speak your mind openly may lead to a shift that transforms the conversation from one assigning blame to one finding solutions.

*If you have questions about your rights or obligations during mediation, please speak with your family lawyer. This discussion about open and closed mediation is based on standard mediation practice and may not apply in some cases.

Comments are closed.

© Peacewise Mediation, Iowa City. All rights reserved. Design by Christina Willner