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 session 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 regarding confidentiality for lawyers (who are not serving as mediators) 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 electronically or mechanically record their mediation sessions. Unfortunately, anyone who is intent on doing so, can do it surreptitiously without the knowledge of the mediator or the other client.  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 have now added a provision to my hiring agreement that requires both spouses to not record our sessions.  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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