Confidentiality & Ethics
MCFM is a resource for Mediators in Massachusetts and aims to provide information about ethical standards for mediators, ethics decisions related to mediation, and the Massachusetts confidentiality statute for mediators. In addition, to attending MCFM member's meetings, you may want to review the following resources:
Confidentiality Statute
Massachusetts General Laws, Chapter 233, Section 23C provides for confidentiality of a mediator’s work product, including memoranda and case files. In addition, oral communications made in the course of mediation in the presences of a mediator by any participant, mediator, or other are considered a confidential communication. Neither the written nor oral communications are subject to disclosure in a judicial or administrative proceeding.
In order to qualify, the mediator has to meet certain requirements, the mediator must have completed at least thirty hours of training in mediation and must have (a) four years of professional experience as a mediator; (b) is accountable to a dispute resolution organization which has been in existence for at least three year; or (c) the mediator has been appointed to mediate by a judicial or governmental body. In addition, the mediator must have entered into a written agreement with the parties to assist them in resolving their disputes.
Also see Leary v. Geoghan MA App. Ct. 2002-J-0435.
Ethics Opinions
See BBA Ethics Opinion 78-1 - "it is our opinion that an attorney may act as mediator in connection with the
divorce and preparation of a separation agreement between husband and wife and in that connection may prepare either a separation agreement or the draft of a separation agreement..."
See Mass Bar Ethics Opinion No. 85-3 - Summary: "An attorney may, in certain circumstances outlined, act as a single mediator or as a co-mediator with a lay family counselor in divorce mediation, provided that the attorney takes certain precautionary steps, including explaining to the parties that the attorney is not representing either party, explaining the risks of proceeding without independent legal counsel and obtaining the informed consent of each party.
An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation.
The attorney may associate with a non-lawyer mediator provided that the services provided by each of them are properly identified and attributed, clients are separately billed for services, and clients are not mislead as to the identity, responsibility and status of the participants."
