Mediation and alternative dispute resolution processes have enjoyed epic growth in recent years. However, in the midst of this growth, some serious ethical quandaries have surfaced for the attorney-mediator. In particular, this Article addresses one crucial issue facing Illinois attorney-mediators today: the conflict between confidentiality and professional responsibility in the mediation process.1
Confidentiality is one of the most attractive aspects of the mediation process. In Illinois, there are a multitude of statutes granting confidentiality to the mediation process.2 However, the vast majority of these confidentiality rules are in direct conflict with attorney rules of professional conduct that require attorneys to report misconduct by fellow attorneys to disciplinary authorities. Attorney-mediators are placed in an intolerable conflict when they must choose between two groups of binding obligations: mediation confidentiality rules and attorney misconduct reporting requirements.
Confidentiality In Mediation
Confidentiality lies at the heart of the mediation process. Mediation would not be nearly as effective or widely utilized if the parties were not assured that their discussions would remain private. Many cases have recognized the crucial need for confidentiality in mediation.3 A great deal of confusion exists regarding the topic of confidentiality in mediation, due in large part to the fact that nearly every jurisdiction in the United States has different statutes or local court rules establishing the parameters of confidentiality in particular mediation programs. Often a single jurisdiction will have several mediation programs with different confidentiality rules, and these rules are enacted on an ad hoc basis.
Adding to this confusion is the fact that confidentiality can be extended to mediation sessions in various different manners.4 The main mechanisms by which confidentiality is granted to mediation sessions are (1) evidentiary rules and privileges such as Federal Rule of Evidence 5015 (which allows courts to create common law privileges) and the commonly relied upon Federal Rule of Evidence 408,6 (which provides an evidentiary exclusion for conduct and statements made during settlement discussions); (2) limitations on discovery through private contracts and court orders; (3) common law protection based on the common law relevancy rule; and (4) confidentiality protection under state statutes. It is important to note that the hundreds of state statutes that exist run the proverbial gamut of confidentiality protection. Some statutes create a full mediation privilege with no exceptions7 while others create more limited protection with specific confidentiality exceptions.8
A recent survey shows at least 34 different statutes exist in Illinois dealing with mediation programs and creating varying types of confidentiality protection. Many of these statutes deal with court-annexed mediation programs and a significant number of these programs involve mediation of divorce and custody disputes.9
The Duty To Report Attorney Misconduct Under The Rules Of Professional Conduct
The conflict between the Rules of Professional Conduct and the confidentiality rules places attorney-mediators in peril. Attorneys have reporting requirements imposed upon them by the Rules of Professional Conduct when they have knowledge of certain misconduct by a fellow attorney.10 However, a review of current law indicates the vast majority of state statutes do not contemplate the conflict between the attorney disclosure requirements and mediation confidentiality, nor do they provide any mechanism for dealing with the conflict.
The current Illinois Rule of Professional Conduct which requires attorneys to report fellow attorney misconduct states in relevant part: "a lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."11
The relevant portion of Rule 8.4 regarding misconduct states: (a) A lawyer shall not: (3) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (4) engage in contact involving dishonesty, fraud, deceit or misrepresentation.12
Despite these rules, attorneys have historically been hesitant to report each other to disciplinary tribunals. However, Illinois attorneys came to a shocking realization that the Illinois Supreme Court would strictly enforce the reporting requirements in the landmark decision In Re Himmel.13 In Himmel, the Illinois Supreme Court strictly construed the attorney misconduct reporting requirements embodied in Rule 8.3 and disciplined an attorney solely because he failed to report a fellow attorney’s misconduct.
In Himmel, an attorney, Casey, converted a clients’ settlement funds. The client hired attorney Himmel to recoup the money. Himmel negotiated a settlement with Casey in which the client agreed not to pursue disciplinary action against Casey.14 Himmel never notified the disciplinary authorities of Casey’s misconduct and was later found to have violated Rule 8.3.15
The Illinois Supreme Court held that the duty to report misconduct is of utmost importance and that discipline for breach of such duty is mandated.16 The court rejected Himmel’s argument that he had no duty to report Casey’s misconduct because he learned about the misconduct pursuant to privileged communications with his client. The court found the information to be unprivileged, noting the client had discussed this information in the presence of third parties.17
The Himmel court rejected the broader "client secret" exception to the reporting rule, which would have allowed Himmel to withhold "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."18 Instead, the Himmel court interpreted the reporting exception narrowly to include only information that falls strictly within the attorney-client evidentiary privilege.19
The court also rejected Himmel’s argument that his client’s order not to report the misconduct relieved him of his duty to report the misconduct to the authorities.20 The court stated that a client’s specific request that an attorney not report the misconduct of another attorney does not provide a defense for failure to report misconduct.
The Himmel decision had an astounding effect on attorney misconduct reporting. In Illinois in 1988, the year before Himmel, the Attorney Registration and Disciplinary Committee had 154 recorded reports of fellow attorney misconduct. In 1989, immediately after Himmel was published, that number jumped to 922 recorded reports.21
In cases following Himmel, courts have concurred with Himmel’s finding that lawyers who violate the reporting rule are subject to mandatory discipline, although cases have differed in their interpretation of when reporting is mandated and what information is privileged.22
The Clash Between The Duty To Keep Mediation Confidential And The Duty To Report Attorney Misconduct
As use of mediation continues to grow, more attorneys are becoming trained as mediators. Attorneys are particularly well suited to mediate certain cases involving complex legal principles and factual matters. Some court-annexed mediation programs require mediators to be licensed attorneys.23
There has been some debate over whether mediation can be characterized as the practice of law. Whether an attorney-mediator is actually engaged in the practice of law is of particular importance in the debate over whether an attorney-mediator should break the confidentiality of a mediation to report attorney misconduct. If the attorney-mediator is actually engaged in the practice of law, there is a much greater likelihood that he would be excused from the attorney misconduct reporting requirements of Rule 8.3, if he could establish that the matters fall under the attorney-client privilege.
In Lange v. Marshall,24 an attorney attempted to use the confusion between mediation and the practice of law to relieve himself of liability for alleged malpractice. The attorney in Lange claimed he could not be guilty of legal malpractice because he was acting as a mediator in a case between two friends who were divorcing. The court refused to award malpractice damages to the plaintiff, finding she had failed to establish that the damages she suffered were proximately caused by the attorney’s negligence.25 This case illustrates the difficulties courts face when attempting to define mediation and distinguish between mediation and the practice of law. Some states have enacted statutes attempting to remedy the situation.26
Conflicting Obligations To The Mediation Process And To The Legal Profession
The case law and policy surrounding both the need for confidentiality in mediation and the misconduct reporting requirements of the Model Rules indicate that both are extremely important issues. Nonetheless, a conflict exists between the two and there is very little guidance to assist attorney-mediators in deciding the proper course of action.
There is clearly a need for a comprehensive set of regulations governing attorney-mediators’ conduct.27 Although states could decide to hold attorney-mediators to the ethical rules for attorneys in that state, this practice is theoretically unsound because most codes of professional conduct for attorneys are aimed at the attorney as adversary or counselor and do not adequately consider the activities of a neutral lawyer performing alternative dispute resolution services.28
The American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution recently drafted Model Standards for mediator conduct.29 Unfortunately, this code does not specifically address the conflict between the duty to maintain confidentiality in the mediation session versus attorney misconduct reporting requirements. Although several organizations have suggested codes of ethics for their mediators,30 these codes are generally discretionary codes of suggested ethical considerations and are not binding in nature. In addition, the problem is further exacerbated because there is no national licensure of mediators or formal mode of disciplinary proceedings for mediator misconduct.
The Clash: In Re Waller
As can be expected, this lack of direction for attorneys has caused a great deal of concern among attorney-mediators. The situation came to a head recently in In Re Waller.31 In Waller, an attorney-mediator was mediating in a court-ordered mediation of a medical malpractice lawsuit. The court’s mediation order included language stating "no statements of any party or counsel shall be disclosed to the court or admissible as evidence."32 During the course of the mediation, the attorney-mediator discovered misconduct on the part of plaintiff’s attorney, John A. Waller. Waller had failed to name a crucial defendant in the lawsuit because that person was one of his clients. The attorney-mediator reported Waller’s conflict of interest to the trial judge.33
When the trial judge asked Waller about the matter, Waller stated he was attempting to test the confidentiality of the mediation process.34 The trial judge then referred the matter to the disciplinary authorities who suspended Waller for sixty days, citing Waller’s false statement to the trial judge as the basis for its decision. The disciplinary board specifically stated it did not feel that the court’s confidentiality order was intended to preclude disclosures "such as that made by the mediator to the judge in this case."35 The board noted that it chose to discipline Waller due to the false statement he made to the judge in open court, rather than a statement made during a closed mediation.36 The board made no attempt to reconcile the language of the court’s order requiring confidentiality of the mediation and the attorney-mediator’s obligation to report misconduct under the disciplinary rules.
The Circuit Court of Appeals for the District of Columbia affirmed the disciplinary board’s decision and focused on Waller’s lie to the trial court judge and his impermissible conflict of interest.37 The court’s intentional failure to address the breach of the confidentiality of the mediation session highlights the lack of guidance given to the attorney-mediators on the issue.
The attorney-mediator in Waller was fortunate that the court supported his decision to violate the court’s order to keep the mediation proceedings confidential.38 Other attorney-mediators may not find a court as supportive of their conduct.
Alternatives To Address The Quagmire Of The Attorney-Mediator
Clearly, uniform standards are needed to guide the conduct of attorney-mediators and to answer difficult ethical questions which will certainly arise. The following are three suggested options to remedy the situation.
1. Enact Mediation Confidentiality Statutes with a Specific Exception for Reporting Professional Misconduct
A survey of all state statutes granting confidentiality to the mediation process reveals only one statute that contemplates the conflict between the duty to maintain confidentiality and the duty to report fellow attorney misconduct. A Minnesota statute creates a privilege for alternative dispute resolution program participants, forbidding them from testifying in any subsequent civil proceeding or administrative hearing as to any statement, conduct, decision, or ruling occurring at or in conjunction with the alternative dispute resolution proceeding.39 The statute then goes on to list several specific exceptions to the confidentiality, including (1) "any statement or conduct that could give rise to disqualification proceedings under the Rules of Professional Conduct for Attorneys; or (2) any statement or conduct that could constitute professional misconduct."40 This wisely drafted statute recognizes the conflict created for attorney-mediators in its jurisdiction and gives guidance to attorney-mediators.
Jurisdictions could follow the lead of the Minnesota statute thereby granting clear guidance to attorney-mediators. This would also give "fair warning" to attorney-advocates before entering the mediation session. There should be no chilling effect for parties who wish to utilize the mediation process in a fair way. The only potential chilling effect would be for attorneys who are attempting to abuse the mediation process.
Although mediation confidentiality is extremely important, the duty to report attorney misconduct should eclipse mediation confidentiality. Attorney misconduct should not take place in the normal course of a mediation session. When it does, there is a good chance an attorney-advocate is using the mediation session to cloak his or her misconduct in confidentiality or to attempt to settle a matter relating to his misconduct in a confidential manner. Attorneys should not be allowed to abuse the system in this way. As such, mediation confidentiality statutes, local rules, and mediation program rules should contain an exception for reporting attorney misconduct.
The real parties in interest to a mediation session are the people involved in the conflict, not the attorneys. It is those people, the clients, for whom mediation was designed to empower through the concept of self-determination. As such, they should be the ones we are concerned about protecting when we design an effective confidentiality standard with appropriate exceptions. Most mediation parties would not steer away from the mediation process when they learn confidentiality could be breached if the mediator learns of attorney misconduct. Most clients presumably desire misconduct on the part of their attorney to be reported.
2. Amend Disciplinary Rules to Contain an Exception for Misconduct Discovered in a Mediation Session
Some argue that the appropriate course is to amend Rule 8.3 to insert a specific exception for misconduct discovered in the mediation session.41 To avoid deliberate abuse, mediation programs could enact mediation rules stating that mediators can decline to mediate a dispute or cease the mediation if it appears to involve a violation of the Rules of Professional Conduct or an attempt to shelter such a violation.42
This system seems to place an undue burden on mediators and mediation centers to make a very difficult determination regarding an attorney’s intent to abuse the system. This could seriously impinge the mediator’s neutrality and the trust of the participants in the mediation — all essential elements for an effective mediation. Also, some mediators are not attorneys by training. To ask a non-attorney mediator to determine whether an attorney is attempting to deliberately circumvent the attorney rules of professional conduct is unfair. Further, even for attorney-mediators, certain individuals might understandably feel hesitant, if not unqualified, to make this type of determination. Jurisdictions need to weigh the benefits of upholding the confidentiality of mediation sessions against the risk of allowing unreported attorney misconduct.
3. Create A Mediation Privilege And Enact Rules of Professional Conduct Which Allow An Exception For Privileged Information
If jurisdictions decide, after weighing the competing policies, that mediation confidentiality is so imperative as to rise to the level of warranting an absolute mediation privilege, jurisdictions can enact mediation privileges. Jurisdictions that follow Rule 8.3 could then amend the exceptions to the reporting requirement to include privileged information of all kinds, thereby eliminating the conflict. This would allow the attorney-mediator to keep confidential an attorney-advocate’s misconduct during a mediation session without fear of being subject to discipline for failure to report.43 Such legislative action would eliminate the confusion borne by attorney-mediators.
However, for the same reasons discussed in option one, this approach seems unsound, in that it would create a mechanism whereby unethical attorneys could exploit the mediation session to veil their unethical conduct in a confidential setting.
The conflict between the duty to maintain confidentiality of mediation sessions and the duty to report attorney misconduct is a serious emerging problem in the face of increased popularity of mediation programs. Lack of uniform rules governing mediation conduct is a deterrent to the growth of the mediation profession. It seems inevitable that more "Waller" type situations will arise and attorney-mediators will be placed in an intolerable conflict situation of having to choose between two sets of binding rules. Guidance is needed to prevent this quagmire. If there is to be no single nationwide code governing mediation conduct, it is of utmost importance that each jurisdiction seriously consider the problem and enact legislation in accordance with its policies and priorities.
Mediation is a process that is designed to work for people. One of the greatest strengths of mediation is its flexibility. The mediation process is certainly flexible enough to permit a rule allowing for a breach of confidentiality if attorney misconduct is revealed, without any impairment to the major goals of the mediation process. By creating clear guidelines for attorney-mediators, the mediation profession will continue to benefit by the addition of experienced attorneys to its ranks.
1.For a full discussion of this issue as it affects mediators on a national level, and a survey of confidentiality statutes across the county, see Pamela A. Kentra, Hear No Evil, See No Evil, Speak No Evil: The Intolerable Conflict for Attorney-Mediators Between the Duty to Maintain Mediation Confidentiality and the Duty to Report Fellow Attorney Misconduct, 1997 B.Y.U. L. Rev. 715 (No. 3).
2. See e.g. 710 ILCS 2016 (West 1993).
3. See e.g. NLRB v. Joseph Macaluso, Inc., 618 F.2d 51 (9th Cir. 1980).
4. For a full discussion of the topic of confidentiality and mediation, see Pamela A. Kentra, Hear No Evil, See No Evil, Speak No Evil: The Intolerable Conflict for Attorney-Mediators Between the Duty to Maintain Mediation Confidentiality and the Duty to Report Fellow Attorney Misconduct, 1997 B.Y.U. L. Rev. 715 (No. 3).
5. Fed. R. Evid. 501.
6. Fed. R. Evid. 408.
7. See e.g. 710 ILCS 2016 (West 1993).
8. See e.g. Ill. 21st Cir. R. 9.1.
9. See e.g. Ill. 17th Cir. R. 7.
10. See Model Rules of Professional Conduct Rule 8.3 (1996) [hereinafter Model Rules].
11. ILCS S. Ct. Rules of Prof. Conduct, Art. VIII, 8.3.
12. ILCS S. Ct. Rules of Prof. Conduct, Art. VIII, 8.4(a)(3) and (4).
13. 533 N.E.2d 790 (Ill. 1988).
14. See id. at 791.
15. See id. at 794.
16. See id.
17. See id.
18. Model Code DR 4-101(A) (1994).
19. See In re Himmel, 553 N.E.2d at 794.
20. See id.
21. Interview with Mary Andreoni, Attorney Registration and Disciplinary Committee, in Chicago, Ill. (Feb. 27, 1997).
22. Compare Weber v. Cueto, 568 N.E.2d 513, 517 (Ill. App. Ct. 1991) with In re Ethics Advisory Panel Opinion No. 92-1, 627 A.2d 317 (R.I. 1993).
23. See e.g. Ill. 18th Cir. R. 14.14.
24. 622 S.W.2d 237 (Mo. Ct. App. 1981).
25. See id. at 238.
26. See Brown, supra note 63, at 325-329, citing Mo. Ann. Stat. § 435.014 (West 1992).
27. See generally Michael G. Daigneault, Lawyers As Mediators: Traps...Pitfalls...Hazards, 43 Fed. Law. 10 (1996).
28. See id.
29. Standards of Conduct for Mediators: Text of Agreement Between AAA, ABA & SPIDR, 50 J. Disp. Resol. (1995).
30. See, e.g., Model Standards of Practice for Family and Divorce Mediation (Association of Family and Conciliation Courts).
31. 573 A.2d 780 (D.C. 1990) (per curiam).
32. Id. at 781 n.4.
33. See id. at 781-82.
34. See id. The attorney-advocate later withdrew his assertion that he was testing the confidentiality of the mediation process.
35. Id. at 785 n.5.
36. See id.
37. Id. At 783-85.
38. See id. at 781 n.4. It should be noted there was no statute covering mediation confidentiality in the jurisdiction at issue in Waller.
39. See Minn. Stat. Ann. § 595.02 (West Supp. 1997).
40. See id. § 595.02(1a)(2), (3).
41. See Cletus C. Hess, Comment, To Disclose or Note to Disclose: The Relationship Between Confidentiality in Mediation and the Model Rules of Professional Conduct, 95 Dick. L. Rev. 601, 623-24 (1991).
42. See id.
43. See Mori Irvine Sub, Serving Two Masters: The Obligation Under the Rules of Professional Conduct to Report Attorney Misconduct in a Confidential Mediation, 26 Rutgers L.J. 155, 184 (1994).
Pamela A. Kentra is a Professor at IIT Chicago-Kent. She teaches Mediation and Alternative Dispute Resolution and supervises the law school’s Mediation/Alternative Dispute Resolution clinical education program.