No Recorders!

Mediation should be a private and confidential process.  The promise of confidentiality is not quite the same as the attorney-client confidentiality governed by the Rules of Professional Conduct for lawyers, because there are two clients in the room with the attorney-mediator, not just one; and each one is entitled to know the communications that go between the mediator and the other person.  The Rules of Professional Conduct for lawyers apply to the one-on-one relationship between a lawyer and her solitary client.  So other standards kick in for mediators that start with the Rules for lawyers, but then refer to a model or standard of conduct for mediators.  The end result is that clients in mediation are entitled to confidentiality regarding the communications made in their meditation sessions.  Period.  

It should go without saying that neither spouse should carry a recording device into mediation, and then activate that device upon sitting down for a session.  

Unfortunately, anyone who carries a cell phone into a mediation session has the ability to record what takes place in that session.  This means that each spouse is not only able to repeat to others what their spouse said or how they said it during a mediation session; they can actually play back the entire session itself!  This is a total betrayal of the other spouse’s expectation of and right to confidentiality.  

I recently encountered a situation where I learned one of my clients had been recording the mediation sessions he and his wife were having with me.  How that informatiion was handled is not important here.  What is important is what I took away from that discovery.  I now require my clients to show their cell phones as soon as we sit down at the desk and demonstrate the act of turning them off.  (Not turning off the ringers, which accomplishes nothing except to eliminate interruptions.  But turning off their phones entirely.)  I also have added a provision to my hiring agreement that requires both spouses to turn off their phones, and to warrant that they will not electronically record or transmit the contents of any mediation session.  In this day and age, and given that some people’s sense of right and wrong may not coincide with my own, this is a precaution that has become necessary to take.  

Ask your mediator about his or her policy regarding the electronic recording of sessions, especially if you are contemplating recording them, or are worried that your spouse is.  I, for one, cannot think of one legitimate reason to record such private and confidential meetings; but if you disagree - ASK your mediator first.  Don’t just hit the record button on your phone’s app  and then put the device back in your pocket.  It’s wrong.  It’s just plain wrong.  And my guess is, even the ones who are recording, know it’s wrong, too. 


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