Category Archives: ADR Laws, Rules, and Regulations

Conflicts of interest in the age of Twitter and Facebook: neutrals must find right balance

finding balance in an age of Twitter and FacebookFacebook, Twitter, LinkedIn - if you are active on any of those sites or on the many others like them – then you no doubt have frequent opportunities to connect.

But what happens for ADR professionals – mediators, arbitrators, and others – when clients are the ones who invite you to connect, follow you, or seek to “friend” you?  In an increasingly plugged-in (and wireless) world, when many of us do our networking or marketing online, the risks of this happening are real: the ABA Journal reports that the North Carolina Judicial Standards Commission reprimanded a judge who friended on Facebook a lawyer in a pending case and discussed the case by posting messages to the lawyer through the social networking site.

Various codes of conduct for mediators, such as ABA and ACR’s Model Standards of Conduct for Mediators (PDF) (which, alas, are aspirational only with no regulatory teeth to back them), exhort mediators to identify and disclose all actual or potential conflicts of interest, including current or past personal or professional relationships with any of the parties, and caution mediators to prevent harm to the integrity of the process and avoid establishing a relationship with any of the participants once the mediation has ended.  These standards, as my favorite ADR iconoclast, scholar Michael Moffitt, has pointed out before, offer little meaningful guidance and don’t tell me whether following someone on Twitter counts as a “relationship”, professional or otherwise. I can however imagine how one side to a dispute might feel were they to see that I’d connected on LinkedIn with their counterpart two weeks after the mediation had concluded.

So what’s a mediator to do in the digital age? What policies do you have in place for dealing with the day a former client seeks to friend you on Facebook ?

Photo credit: Kostya Kisleyko

Mediators pull plug on efforts to enact Uniform Mediation Act in Massachusetts

In 1985, the Massachusetts legislature enacted a statute creating a privilege for mediation communications.

As it turned out, despite the good intentions of its makers, it proved to be a deeply flawed statute. It fails to specify exceptions to privilege or identify how or by whom the privilege could be waived. It creates uncertainties about what kind of mediation communications are protected from disclosure, since the language suggests that pre-mediation communications may not be covered, particularly if there is no written contract between mediator and parties. It is also not clear from the language of the statute whether the law prohibits disclosure of out-of-court statements.

Controversially, the statute applies only to mediations conducted by mediators as the statute defines them:

…a “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.

This definition, as even a superficial reading reveals, is vague, raising more questions than it answers. It is also arbitrary and baseless: the qualifications for mediators shoehorned into the statute — the 30 hours of training, four years of professional experience, and three years in existence for a dispute resolution organization — were plucked from thin air by the drafters.

Over 20 years later, in September 2006, a group of mediators convened at Suffolk University Law School to address these statutory shortcomings and consider whether the Uniform Mediation Act might be a better choice for Massachusetts practitioners. Calling ourselves the MassUMA Working Group, we met numerous times between September 2006 and April 2009  to discuss the UMA and consider whether to adapt it to meet the needs of Massachusetts mediators and consumers of mediation services. The UMA specifies the parameters of privilege, protecting mediation communications from the first phone call to the mediator’s office to the final hand shake. It distinguishes among mediators, parties, and non-party participants for purposes of determining how privilege may be waived, and it specifies exceptions. It also leaves decisions about disclosure of statements outside of court – confidentiality – in the hands of the parties. Finally, the UMA avoids the definitional pitfalls of the Massachusetts statute, defining a mediator merely as “an individual who conducts a mediation”. Among our group, the UMA had supporters (a sizeable majority) and detractors (a vocal and concerned minority).

Regrettably, despite the arduous efforts over many long months of the Working Group and the several subcommittees convened to address specific issues, the Working Group, unable to reach consensus, agreed last month to disband and put its efforts on hold for now .

What happened? A detailed post-mortem I leave in the hands of our field’s historians. But other fracture points appeared, apart from the obvious division between supporters and critics of the UMA. Among the several causes of impasse was this: the Working Group was stymied by its inability to agree upon a definition of mediator, since many could not accept a statute that did not specify minimum qualifications for mediators and that defined a mediator simply as one “who conducts a mediation”. The minority view, held by me and a handful of others, was to accept the UMA’s definition and take up the discussion of credentialing in a different venue. The great majority of my colleagues preferred to graft the old definition (despite its demonstrated shortcomings) onto the UMA, with some small changes, including increasing the number of hours of training specified from 30 to 40. That they did so in the face of evidence that these arbitrary requirements have no empirical basis is something that I still can not understand.

Taking time off to regroup and rethink though makes sense, given how divided we remained at the end and how many serious questions were left unresolved. Change of this magnitude comes slowly.  There is always next time, and ultimately we will get there –  through a carefully designed process, the full engagement and participation of all affected communities across the Commonwealth, and with informed deliberation.

Time, I hope, will bring clarity to all of us, and perhaps, dare I say it, a change of mind.

Massachusetts Uniform Mediation Act: time to make your opinion count online or in person

MassUMA Working Group seeks comments on proposed Uniform Mediation ActSince 2006, a group of mediators in Massachusetts, designating itself the MassUMA Working Group, has met regularly to discuss the adoption of the Uniform Mediation Act (“UMA”) in the Commonwealth.

The UMA protects communications made during a mediation and establishes a limited evidentiary privilege that prevents the use of those communications in subsequent legal proceedings.  The UMA could replace the current law in Massachusetts, M.G.L. ch. 233, § 23C.

During the course of two years, the MassUMA Working Group through the efforts of its subcommittees has produced recommendations and most recently an amended version of the UMA for consideration and public commenting.

The Working Group has scheduled the following public meetings to provide information about the UMA and invite input from mediators and the general public:

(FYI, I’ll be facilitating the meeting on November 24 in Greenfield.)

In addition, two meetings of the MassUMA Working Group, also open to the public, will be held on the following dates:

  • Thursday, December 4, 2008, 3-5 p.m.
  • Tuesday, December 16, 2008, 2-5 p.m.

These meetings will take place at the offices of the Federal Mediation and Conciliation Services, 99 Summer Street, Boston, MA. If you cannot attend in person, you can still participate by phone by calling 712-429-0690, enter access code 317609 and wait for other participants.

The public (that’s you) is strongly encouraged to comment online on the amended version of the Uniform Mediation Act proposed by the MassUMA Working Group, known as the UMA One Text.

If you’re interested in my two cents, you can read my objections to the amended version in an article I posted a year ago, “In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past. I’m planning to revisit and refine those objections in an upcoming post soon.

In weighing the Uniform Mediation Act, Massachusetts mediators may be poised to repeat mistakes of the past

Massachusetts mediators poised to make mistake in considering new language for Uniform Mediation ActIn April 2006, I reported that the Boston Bar Association proposed an amendment to the Massachusetts mediation confidentiality statute, Mass. Gen. Law. ch. 233, s. 23C. That statute protects from disclosure in a judicial or administrative proceeding “[a]ny communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person.”

The BBA’s proposal sparked an immediate backlash within the mediation community. What was radical about the BBA’s proposed amendment was its change to the statutory definition of mediator. The current statute defines a mediator as “a person not a party to a dispute” who:

enters into a written agreement with the parties to assist them in resolving their disputes has completed at least thirty hours of training in mediation and either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years

The BBA’s proposed amendment would eliminate these requirements and define a mediator simply as “an individual who conducts a mediation”. At the time I condemned this proposal and argued for preserving the current definition.

As it turns out, the Boston Bar Association was right. And I was wrong.

And why that matters now is that today the mediation community in Massachusetts may be poised to make the same kind of mistake I did.

Let me explain why.

Some background first. A small group of mediators in Massachusetts, designating itself the MassUMA Working Group, has been meeting for the past year to consider whether to enact the Uniform Mediation Act (“UMA”) here in the Commonwealth.

The UMA defines mediation as “a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute”. It defines a mediator as “an individual who conducts a mediation” — as did the Boston Bar Association’s proposed language.

But a number of Massachusetts mediators who support the UMA want to replace its definition with the one currently in effect in the Commonwealth, along with some additional language.

A subcommittee of the Working Group supports the following definition:

A “mediator” shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator after such training or is accountable, after such training, to a dispute resolution organization which has been in existence for at least three years.

The phrase “dispute resolution organization” means a program with which neutrals are affiliated, through membership on a roster or a similar relationship, which administers, provides and monitors dispute resolution services. A program may be operated by a court employee or by an organization independent of the court, including a corporation or a government agency. A program operated by a court employee may include one or more court employees or non-employees or a combination of court employees and non- employees on its roster.

As I said, adopting this language would be a big mistake. To see why, let’s walk through each provision of the proposed language.

The written agreement requirement.

There is no doubt that good practice and common sense (not to mention the terms of at least one professional mediator liability insurance policy that I know of) dictate that mediators enter into a written agreement with their clients. Such agreements typically define the mediation process and the mediator’s role, spell out exceptions to confidentiality, and describe the respective duties and obligations of the parties to the agreement. A mediator would be foolhardy not to enter into such an agreement

However, such a definition ignores the realities of practice. For example, what about the many solo mediators who conduct their own intake or speak with parties prior to meeting them to prepare them for the mediation or to answer questions about mediation and the mediator’s role? Often parties reveal confidential information to mediators in those off-line, one-on-one conversations as a necessary part of intake and screening or the convening process. And sometimes those parties then elect to use a different neutral or even choose not to mediate their dispute at all — which means that there is no written agreement between those parties and the mediator.

Under the UMA, which does not require a written agreement, such communications in these circumstances would be privileged as they should be. Under current Massachusetts law — and the version of the UMA which some members of the Working Group support — they are not. Asking parties to sign an agreement prior to having a preliminary conversation with the mediator — even to gather information about the mediation process and its suitability for their own dispute– is both unrealistic and burdensome to all involved. I can see no rational basis for excluding from the protection of the statute these communications.

Training hours requirement.

Don’t get me wrong. I believe that all mediators should be adequately trained to serve as neutrals in the mediation of disputes. But a requirement of 30 hours of training in mediation is problematic for many reasons.

First, there is the problem of definition — what exactly do we mean when we say “training in mediation” when so many competing models of mediation practice abound — evaluative, facilitative, transformative, narrative, the list goes on? Each is normatively distinct and describes very differently the role and responsibilities of the mediator and the disputants. Some scholars and practitioners, in fact, have argued that evaluative mediation may not be mediation at all.

So if 30 hours of training is required, the question is, 30 hours of training in what kind of mediation? (To learn why this is not just a difference of semantics, read this excerpt from an article by ADR scholar and professor Michael Moffitt.)

The problem, too, lies with the number itself — whether 30 hours or 40, is that sufficient preparation pedagogically speaking? Plenty of academics would say not, that immersion in a comprehensive curriculum in a formal university setting is necessary to master conflict dynamics and understand negotiation theory.

The training requirement is premised on the notion that training prepares people to be more effective mediators. But in an unlicensed and unregulated field not only are the mediators themselves unregulated but so too are the mediation trainers. Institutions of higher learning must meet recognized accreditation standards. But in the U.S. mediation trainings and trainers are accountable to no one. So while someone may have 30 hours of mediation training under her belt, it doesn’t mean that she has had the right kind of training.

Importantly, too, the 30-hour requirement inhibits party choice of mediators — ironic when self-determination by parties is a core tenet of mediation. Such a requirement also reflects an unfortunate provincialism. It could deprive neutrals who have arrived in Massachusetts from other states or indeed from other countries of the benefits of this statute, discouraging professional and cultural diversity, as well as innovation, in what is still a young and evolving field.

Four years of professional experience.

There are so many problems with this requirement, I’m not sure where to begin. First of all, why four, a wholly arbitrary number? What is the four years based on? Why not three? Or two? Or none? Why should parties be denied the benefit of this statute solely because they selected a neutral possessed of three years, eleven months, and nine days of professional experience? Or even one day of experience, if this is the neutral the parties have selected and trust? And what about individuals who have a real aptitude for mediation? I meet a number of them each year in the trainings I conduct — people who demonstrate true talent and skill. Why should someone like that be arbitrarily excluded from the statutory meaning of “mediator” simply because they don’t have the requisite four years?

Also, what exactly is “four years”? Does that mean 40 hours each week spent mediating for 50 weeks out of every year? Does that mean one case a day? Or one case each week? Or something else?

And what constitutes “professional experience”? According to my dictionary, “professional” means “following an occupation as a means of livelihood or for gain”. What does that mean for the many volunteer community mediators who provide pro bono (or low bono) services in small claims or neighborhood settings? Don’t they count? Are they amateurs, not professionals? And maybe “four years of professional experience” doesn’t mean mediation experience at all. For example, I’m not just a mediator — I coach and train people in conflict resolution and negotiation skills. Does that work count as “professional experience”? After all, I’m using my skills and knowledge developed as a mediator to deliver those services.

Besides, if the goal is to assure public confidence in mediators, since when is length of years of experience any guarantee that a neutral is any good? A requirement like this does nothing to address or weed out incompetence.

Accountability to a dispute resolution organization which has been in existence for at least three years.

This requirement suffers from the same issues of arbitrariness that the preceding one did. Why three years? I just founded a dispute resolution firm with four partners; together we have over 75 years of experience. My four partners are respected leaders in the field. But because our company is only a few months old, it doesn’t count for purposes of this statute.

Again, if public confidence in mediators is the goal, what does the length of existence of a particular organization have to do with it? The length of time in which an organization has been in existence is no guarantee of anything, including its commitment to excellence and best practices.

The problem too is one of language. What did the drafters mean by “accountable to a dispute resolution organization”? What precisely does it mean to be “accountable”? And what about “dispute resolution organization”? Conceivably this could mean an organization that provides arbitration services only but no mediation — which makes little sense if the objective is to ensure proper supervision of mediators.

This leads me to a final point. This requirement does not recognize alternative methods to build skills and develop the capacity to mediate — supervision by an experienced and qualified mentor in solo practice, for example, but one who is not part of a “dispute resolution organization”.


Let me be clear. I share the goal of building public confidence in the mediation field that motivates those who support this definition. And I agree that establishing threshold requirements for training and credentialing mediators is critical to achieving that goal. But training and credentialing are topics so important that they warrant an independent inquiry, separate from consideration of a statute that concerns evidentiary privilege — and one that answers, not ignores, the questions I raise here.

I respect those who first wrestled with the question of how to define a mediator when the Massachusetts confidentiality statute was enacted in 1985. And I salute those striving today who wrestle anew with this issue. But we can’t shy away from asking hard questions now just because it may be politically expedient to do so or because we fear that raising those questions might show disrespect to the pioneers who came before us.

We owe it to those who will follow us.

No-exception confidentiality laws bar evidence of legal malpractice occurring in mediation, according to California appeals court decision

California decision bars evidence of legal malpractice in underlying mediationCritics of alternative dispute resolution have claimed that it undermines the rule of law and subverts justice. A court decision this week from California may lend support to these criticisms.

In a case titled “Wimsatt v. Superior Court” (PDF), the California Court of Appeals ruled on Monday that California laws barred a plaintiff from obtaining mediation briefs and related e-mails from an underlying lawsuit so that he could pursue a malpractice action against his former lawyer for conduct during the course of the mediation. The plaintiff alleged that his former lawyer had breached his fiduciary duty by reducing his settlement demand without his knowledge or consent.

California law shields from discovery communications made during the course of a mediation and provides no exceptions on public policy grounds. Although the law permitted no other outcome, the appeals court judge was clearly troubled by the result:

Our Supreme Court has clearly and unequivocably stated that we may not craft exceptions to mediation confidentiality. The Court has also stated that if an exception is to be made for legal misconduct, it is for the Legislature to do, and not the courts…

The stringent result we reach here means that when clients … participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.

The judge called upon the Legislature to act in the best interests of justice and the public:

Given the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered.

Like California, Massachusetts law protects the confidentiality of mediation communications. It allows no exceptions. Last September, the mediation community in Massachusetts formed a committee known as the MassUMA Working Group to explore the adoption of the Uniform Mediation Act. The UMA specifies a number of exceptions from the privilege, including evidence of professional misconduct or malpractice by a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation. Enactment of the UMA in Massachusetts would prevent the kind of unjust and unintended consequence that California has just confronted.

Mediators, still not ready to support public policy exceptions to confidentiality in mediation? Then consider the damage a case like this can do to public confidence in the mediation process. One blogger, law professor Shaun Martin, sums it up in a few harsh words:

Feel like committing malpractice? Selling out your client?

Do it in a mediation.

That’s the lesson of the day. Justice Aldrich doesn’t appear especially happy about the result, but he says that he’s bound by precedent and that any changes are for the Legislature to make, not the judiciary. Even if the injustice is manifest.

Remember that the next time you agree to participate in a mediation.

(With thanks to colleague David Hoffman for alerting me to this decision.)

Mandatory arbitration provision violates US National Labor Relations Act

Mandatory arbitration provisions held to violate National Labor Relations ActRoss Runkel in both his arbitration blog and his employment law blog reports this week that the U.S. National Labor Relations Board has held in U-Haul Company of California (NLRB 06/08/2006) (2-1) that a mandatory arbitration policy adopted by a non-union company violates the National Labor Relations Act.

Ross’s analysis of this decision and its limited implications can be found here. Ross points out that this decision does not invalidate U-Haul’s mandatory arbitration policy in it entirety, but only the extent to which it affects NLRB claims.

Regular readers of this blog know that I am no fan of mandatory arbitration provisions in consumer, health care, and employment agreements.

For the reasons why, please read either of these posts: “The company we keep: ADR, tort reform, and the erosion of justice,” and “30 years after the Pound Conference: reflections on ADR and justice in the 21st century“.

For a detailed exploration of the issues associated with mandatory arbitration provisions from the perspective of the U.S. Equal Employment Opportunity Commission, the governmental body charged with enforcement of federal anti-discrimination laws, please consider the “Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment” issued in 1997. The EEOC, a supporter of voluntary alternative dispute resolution, takes the position that mandatory arbitration provisions in employment agreements violate the fundamental principles of employment discrimination laws in large part due to the extent to which such policies shield employers from public accountability.

COERCION, COURT SANCTIONS, AND MEDIATION: Views from both sides of the Atlantic

Coercion, the courts and mediationAn interesting report on mediation appeared this week in the U.K. online journal Legal Week by attorney Tim Ashdown, a commercial litigator and partner with the British law firm DMH Stallard.

The article describes benefits mediation offers clients in commercial litigation, including early settlement, cost savings, more direct participation by clients in their own case, and greater flexibility in creating outcomes than litigation offers. The article also draws attention to factors which can limit mediation’s effectiveness.

However, that’s not the reason why you should read this report (despite the fact that we mediators always appreciate a thoughtful, well-written article highlighting the benefits mediation offers written by someone who understands the subject matter very well indeed, as Ashdown does).

What’s most striking about this article is its discussion of a current trend in British jurisprudence for judges to sanction litigants who “unreasonably refuse” to go to mediation to resolve their disputes, particularly when a judge has recommended mediation. Ashdown cites a number of examples of cases in which courts in Britain have approved cost sanctions against parties who have refused to mediate.

This imposition of sanctions in my view undermines two of mediation’s defining principles: voluntariness and self-determination. These principles are among the chief factors which account for mediation’s tremendous appeal for disputants. The process works precisely because of this absence of coercion—parties are more willing to participate in a process which is theirs alone and in which they themselves define the outcome. Autonomy matters.

It is true that courts everywhere—in Britain and certainly here in the U.S.—promote mediation and other forms of ADR as a means of relieving the demands litigation places upon overburdened court systems. But here in the U.S., at least here in the state in which I practice, we approach the issue of sanctions in mediation very differently.

In Massachusetts, Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires court clerks to make information on court-connected dispute resolution available to both attorneys and pro se parties, and requires attorneys to

provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent.

However, although Rule 6 permits a court to impose sanctions on parties who fail to attend a scheduled dispute resolution session, it also prohibits courts from imposing sanctions for failure to settle and stresses the importance of ensuring that settlements are reached without coercion, particularly when parties are unrepresented by counsel:

Courts shall inform parties that, unless otherwise required by law, they are not required to make offers and concessions or to settle in a court-connected dispute resolution process. Courts shall not impose sanctions for nonsettlement by the parties. The court shall give particular attention to the issues presented by unrepresented parties, such as the need for the neutral to memorialize the agreement and the danger of coerced settlement in cases involving an imbalance of power between the parties. In dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case.

Voluntariness and self-determination, along with confidentiality, may be under assault here in Massachusetts: as some of you no doubt recall, back in January a Superior Court judge issued a decision which penalized a party for failing to heed a mediator’s advice. This decision, fortunately, has been appealed.

As I have discussed here before, this is a path we do not want to embark upon. Sanctioning parties for failing to settle through mediation will only erode support and public confidence in the mediation process. While this approach may provide incentive to parties in Britain to come to the mediation table and reach a deal, there are other and better ways to promote settlement through mediation.

AUSTRALIAN JURISTS AND LAWMAKERS URGED TO CONSIDER MEDIATION IN PLACE OF JURY TRIALS

AM, the Australian Broadcasting Corporation’s early morning current affairs program, reported this morning that Australian legislators and jurists may be contemplating a change to the Australian criminal justice system. Under consideration is the use of mediation in place of jury trials in criminal matters, a system already utilized in Canada. Judges would serve as mediators between the prosecution and defense counsel, although the victim and the accused would not be present for the negotiations.

For links to the transcript, or to the story in Real Audio and Windows Media formats, click here.

CONFIDENTIALITY OF FACT-FINDING REPORT AN ISSUE RESULTING FROM MEDIATION BETWEEN SCHOOL OFFICIALS AND TEACHERS' UNION

Confidentiality of report an issue in mediation between school officials and teachers' unionAs discussed in an earlier posting, the confidentiality of the mediation process enables disputants to engage in candid discussions without the risk that the information shared and options considered could later be used against either party in court later on. Confidentiality, while important to maintain the trust of parties in the mediation process, is a two-edged sword and can become an issue when the mediation addresses matters of great concern to the public, which is the situation in Corvallis, Oregon.

In a story reported this morning, the Corvallis School District and the Corvallis Education Association recently negotiated a new teachers’ contract with the assistance of a mediator, whose responsibilities included the preparation and submission of a fact-finding report. The parties had agreed that the report would remain confidential unless they were unsuccessful in reaching an agreement. Oregon law apparently permits governmental officials to withhold such documents from the public. But some, including at least one parent, are requesting the School District to make the report public to shed light on the financial issues that Corvallis schools are facing. Oregon law does not prohibit the disclosure of such reports, but whether school officials and the teachers’ union will agree to release the report remains to be seen.

MASSPORT V. EMPLOYERS INSURANCE OF WAUSAU: Decision available here for downloading in PDF format

Two earlier posts discussed a controversial decision here in Massachusetts by a Superior Court judge in a case known as Massachusetts Port Authority v. Employers Insurance of Wausau, a Mutual Company (Civil Action No. 95-3079-A). In this case a judge held that a defendant’s failure to heed the advice of mediators could constitute evidence of bad faith refusal to settle. Because the decision seemingly disregards Massachusetts law which protects the confidentiality of communications made during the course of a mediation, this decision could have adverse impact on public confidence in the mediation process.

The text of the decision at the time of those postings was not available in an electronic format on the Internet. However, I have since been able to obtain a paper copy of the decision and put it into a PDF format. Click here to download it.