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| vol 10, num 2 | November 2024 |
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| Is My Mediation Privileged and Confidential? |
| Between local rules establishing mediation confidentiality and Federal Rules of Evidence (FRE) 408 and 501, most assume that mediation is privileged and confidential, but that might not always be the case. Some courts have found that FRE 408 is not applicable to all aspects of mediation. Other courts have found that local rules cannot circumvent FRE 501, which requires a common law, federal law, constitutional law or state law to establish privilege.
The Second Circuit has suggested that confidential information provided in connection with mediation may be disclosed if there is “(1) a special need for the confidential material it sought; (2) resulting unfairness from a lack of discovery; and (3) [a finding] that the need for the evidence outweighed the interest in maintaining confidentiality.” The Second Circuit drew this standard from sources relied on by the underlying bankruptcy court, the Uniform Mediation Act (UMA) and other laws that “recognize[] the importance of maintaining the confidentiality of mediation communications and provide[] for disclosure in only limited circumstances.”
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| Come to Our Committee's Panel at the Winter Leadership Conference! |
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| The Mediation Committee will be teaming up with the Legislation Committee to host a panel, "Do You Want to Make a Change? The Process to Amend the Bankruptcy Rules," at this year's Winter Leadership Conference, being held Dec. 12-14 at The Phoenician Scottsdale in Scottsdale, Ariz. Using the current proposed amendments to Bankruptcy Rule 9031 as an example, this panel will provide an overview on how to add, delete or revise the Bankruptcy Rules from concept to a successful enacted rule change. Moderator Edward L. Schnitzer of Womble Bond Dickinson will be joined by
panelists Hon. Martin R. Barash of the U.S. Bankruptcy Court (C.D. Cal.), Sylvia Mayer of S. Mayer Law and Emery G. Lee III of the Federal Judicial Center. Make plans to join us in Scottsdale! |
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