Confidentiality Concerns
What are the four sources of confidentiality that were compared and contrasted in the reading?
What is (1) Rule 408 of the Federal Rules of Evidence, (2) the Uniform Mediation Act, (3) California Law, and (4) private confidentiality agreements.
True or False? “Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is NOT admissible to prove liability for or invalidity of the claim or its amount.”
True. This can be found as the first sentence of the statute (904.08).
What is the definition of good faith participation?
What is gotcha, there is no definition for this term—the courts are still grappling with how to properly define this term.
____ is a dispute resolution process in which an impartial person or persons (the mediator) assists the parties to negotiate a consensual and informed settlement.
What is mediation.
The ”support person” that your client may choose to have involved in the mediation is called the what?
What is an advocate.
How many exceptions have been adopted to the Uniform Mediation Act’s confidentiality rules?
What is 7.
What is the purpose of 904.85?
What is to encourage the candor and cooperation of disputing parties, to the end that disputes may be quickly, fairly and voluntarily settled.
Rule 4.1 obligates lawyers to be truthful but contains an exception for “estimates of price, or value placed on the subject of a transaction, and a party’s intentions as to an acceptable settlement of a claim.” What is this commonly referred to as?
What is puffery, puffing, posturing, other variations of these words.
True or False? As a WAM member, you can charge a contingent fee for mediation?
What is false, per 6.2 of the ethical guidelines, “we do not charge a fee that is contingent upon the result of the mediation or the amount of the settlement.”
What are the three types of Mediation?
What is Facilitative, Evaluative, and Transformative Mediation.
Of the sources of confidentiality that were covered in the reading, which one treats mediation communications as privileged?
What is the uniform mediation act.
__ is the neutral facilitator in mediation, its agents and employees.
Who is the mediator.
The author noted their favorite sanction for bad lawyering in the text, what was it?
What is a court ordered an attorney to take a seminar or course on how to represent clients in mediation.
True or False? As a WAM member, you make out best promising a win for your client in order to gain commitment.
False per 7.2 which states “we refrain from promises and guarantees of results.”
What are the two approaches that can be taken in a mediation?
What is the positional and problem solving approach.
What is the primary method used to enforce confidentiality?
What is to preclude admitting the mediation communication as evidence in a proceeding.
True or False? “[O]ral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party is admissible in evidence or subject to discovery or compulsory process in any judicial or administrative proceeding.”
False, they are not.
Under Rule 8.3, you are obligated to inform appropriate professional authority of any conduct from the opposing side that does what?
What is is raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
ACR was originally known as what?
What is Wisconsin Association of Mediators.
BATNA is an acronym for what?
What is “Best Alternative To a Negotiated Agreement”.
The UMA prohibits the mediator from making a report regarding the mediation to a court or other authority that may make a ruling on the dispute, what is their stated reason for preventing this?
What is such reports by the mediator can be coercive and undermine their neutrality.
True or False? “[M]ediator[s] may be subpoenaed or otherwise compelled to disclose any oral or written communication relating to a dispute in mediation made or presented in mediation by the mediator or a party or to render an opinion about the parties, the dispute whose resolution is attempted by mediation or any other aspect of the mediation.”
The book commented on the on the approach used by the English to assess whether a party has reasonably refused to mediate. 6 factors are used for this assessment, name 3 of them.
What is (any three of these): (1) the nature of the dispute, (2) the merits of the case, (3) other settlement methods have been attempted, (4) the costs of mediation would have been disproportionately high, (5) delay, and (6) whether the mediation had a reasonable prospect of success
When was WAM nka ACR created?
What is 1983.
Describe the decision making power that a mediator has.
What is, a mediator has no real decision making power.