(left:  Bansky! as shot by Goatgirl:  it says:   . . . for silence is a fragile thing . . . )

Silence (confidentiality) in mediation is what makes mediation possible; what permits the parties to take time out from the battlefield where everything we say and every move we make can and will be used against us.   

Private, confidential mediation time is a time when the parties can come together as people rather than as combatants.  And this is true no matter how many zeros follow the first number by which they identify the "value" of their dispute (it could be land or women or rubies; furs or hunting grounds; fishing rights or that most evanescent of properties  -- the product of the creative human spirit -- music, poetry, film, video, web cam.) 

Mediation time is a time when the law allows people to recognize that they share a mutual problem, one that yokes them together.  It is a time when they can give up carrying the conflict's burden alone and recognize that by drilling a hole in the other guy's side of the boat, they will sink their own.

On the other hand, silence and secrets are death to the spirit.  The terrible tragedy of the evangelical minister who was finally unable to keep his sexual preference silent is a good example for World AIDS Day.  The magnitude of the tragedy following his public "outing" makes the word "preference" seem weak and far too, well, preferential, as if one were ordering a meal in a restaurant or choosing a new suit of clothes.  We are, I hear, only as sick as our secrets.

But the digression seems to have become the entire post.  I nevertheless stick with my original plan to pass along, from the ADR Forum, the holding of the below-referenced appellate opinion on the mediation privilege in the context of an arbitration For the World AIDS Day page, click here.  For the (red) campaign and a video message from Bono, click here

from the National Arbitration Forum 

Confidentiality Protections Apply to Hybrid Procedure Consisting of Arbitration and Mediation
Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006)
11/1/2006

A federal district court in Ohio ruled that the confidentiality protections of the Uniform Mediation Act applied to an email sent during the mediation phase of a hybrid dispute resolution procedure that first started with arbitration.

In Society of Lloyd's v. Moore, No. 1:06-CV-286, 2006 WL 3167735 (S.D. Ohio Nov. 1, 2006), Lloyd's sued Moore for alleged fraud. After the Court granted partial summary judgment, the parties agreed to submit the remaining matters to arbitration and mediation...Full Story  

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