Robbins: Maintaining confidences
Don’t tell anyone!
There are times to maintain confidence.
Mediation is one of them. But before we launch into precisely why maintaining confidence is key — and what the rules are — let’s first define what mediation is … and isn’t.
Mediation is a process of negotiation. Read that again. It is not, as many folks believe, a surrogate for trial. In fact one of the hallmarks of mediation is that the parties must, if they come to any conclusion at all, do so at their own determination.
In mediation, to borrow the words of former President George W. Bush, there is no “decider” except, perhaps, the parties themselves. As such, what a mediator does is guide, cajole, goad and arm-twist the disputants to their own port of reconciliation. If they don’t arrive at compromise and a mutually satisfactory resolution, the mediator cannot force an armistice to be reached.
A mediator can only push so far. At the end of what is often a very long day, the mediator’s recommendations notwithstanding, the decision — if one is to be reached at all — belongs to the parties themselves.
Because the mediator is neutral, anything that may be shared with him by one party or the other cannot be shared with others. If Party A shares a confidence with the mediator, unless s/he advised that it may be shared with Party B, the mediator’s lips must remain tightly zipped. Similarly, the mediator may not be called to testify at trial. Much like the Vegas catchline, “What happens in mediation, stays in mediation.”
Well, the answer is really pretty simple, if confidences whispered in the mediator’s ears must be strictly held, then candor is amplified and the chances for informal resolution soar. If, instead, what was shared with the mediator could be spilled to others, mediation would quickly devolve into a poker game where the players closely hold their cards.
Stated simply, maintaining confidences promotes candor, which multiplies the chance that a successful outcome will be reached.
Colorado Rule of Evidence 408 (and its companion Federal Rule of Evidence 408), entitled “Compromise Offers and Negotiations,” says this:
Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
In other words, statements made in the pursuit of settlement, either between the parties and/or counsel, if reserved under the rule, cannot be used as evidence. If not reserved under the rule, however, Katy bar the door!
The purpose of the rule is a mirror image of that which pertains to mediation; if counsel may speak freely beneath the umbrella of the rule, candor is promoted, which in turn enhances and encourages the possibility of informal resolution.
A key to confidences and their jealous protection pertains between attorneys and their clients. Nowhere is this more enshrined than in the precept of attorney-client privilege, which may be defined as the legal privilege that works to keep confidential communications between an attorney and his or her client secret.
If, say, you tell me something as your attorney and I am called to testify, my lips are sealed. I cannot be compelled and will not spill the beans of what you have confided in me. The concept of attorney-client privilege is fundamental. If a client cannot be fully candid with his or her attorney, how is the attorney to properly prepare, properly represent or know the full measure of the client’s case and his or her concerns? If you cannot share with me what is dear to you, the true facts of the case, and what you may be willing to accept in compromise, my advocacy on your behalf, and my ability to counsel will be hamstrung.
To assure the free flow of candor between a client and his or her attorney, Rule 1.6 of the Rules of Professional Responsibility provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted under some limited and enumerated circumstances (such as to prevent death or bodily injury to another or to prevent the commission of a crime).
Mum is, in other words, the word.
Much of law and its practice orbits around trust. As your attorney, I must trust that what you are telling me is true. You, in turn, must trust me to hold your secrets responsibly and to make use of them only in your interest. Trust, in turn, depends on candor, the protection of which depends on both ethical practice and the rules that hold disclosure of your confidences in check.
Don’t breathe a word of this to anyone!
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.