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February 13, 2012

John Gregory

A Mediator's Duty of Disclosure

I heard lately of a case where someone mediating a dispute between A and B sent an email about the dispute to A with a bcc: to B.

A managed to examine the header of the email sufficiently to see the bcc: to B, and complained to the mediator.

My first reaction was "wow, I didn't know you could do that!" Do lawyers now have to scrub their email headers the way they are supposed to scrub metadata out of documents before sending to the other side?

My second response was "wait a minute! What was the mediator doing sending a bcc: to B?" Shouldn't the mediator disclose to both parties all communications made to either – at least subject to express requests for or undertakings of confidentiality – in either case, a hidden communication to the other party should be off limits.

S. 8 of Ontario's Commercial Mediation Act (and s. 11 of Nova Scotia's Act of the same name) say that the mediator may disclose any information received from a party, unless expressly requested to keep it in confidence. But that doesn't really apply here, where the mediator's own communication was in issue.

Any views from Slawians on either email headers as sources of metadata or on mediators' duties not to communicate with hidden messages?

John D. Gregory is an Ontario lawyer called in 1977, with a special interest in what happens to the law when you take the paper away. He works in civil justice law reform at the Ministry of the Attorney General, but his Slawian opinions are not necessarily those of the Ministry.
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One Comment on “A Mediator's Duty of Disclosure”

  1. Kari Boyle says:
    February 14, 2012 at 11:40 am

    Hi John:
    Very interesting issue. Mediate BC's Standards of Conduct provide in section 7.4:

    "Prior to holding a private session with a participant, other than a pre-mediation interview, the mediator must ensure that each participant agrees whether or not information disclosed in the private session is confidential."

    If an e-mail to one party during the course of a mediation process is considered a "private session" then arguably this provision emphasizes the duty of the mediator to ensure that these kinds of issues are discussed and resolved well in advance. Usually, the Agreement to Mediate raises the issues of the "rules" around caucusing and communications between the party and the mediator.
    Still, it would be rare for a party to agree that it was okay for the other party to receive blind copies of e-mail correspondence – why wouldn't the other party just be cc'd for transparency? Using a bcc seems very risky to me.

    I'm afraid that I can't comment on the metadata issue but I'll be interested to hear the views of others on both issues!
    Thanks John
    Kari Boyle

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