MCFM response to inquiries regarding whether membership in MCFM satisfies one of the requirements of the Massachusetts confidentiality statute (MGL, Chapter 233, Section 23C)
Massachusetts General Laws, Chapter 233, Section 23C states that:
All memoranda, and other work product prepared by a mediator and a mediator's case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.
For the purposes of this section a ''mediator'' shall mean a person not a party to a dispute who enters into a written agreement with the parties to assist them in resolving their disputes and has completed at least thirty hours of training in mediation and who either has four years of professional experience as a mediator or is accountable to a dispute resolution organization which has been in existence for at least three years or one who has been appointed to mediate by a judicial or governmental body.
MCFM has received inquiries regarding whether membership in MCFM satisfies one of the requirements under this statute, that the mediator “…is accountable to a dispute resolution organization which has been in existence for at least three years….”
Below is an excerpt from David Hoffman’s book: Mediation: A Practice Guide for Mediators, Lawyers, and Other Professionals (Massachusetts Continuing Legal Education, 2013):
“What is the definition of a dispute resolution organization, and what does accountability to that organization mean? A reasonable answer might be that the organization must be primarily focused on dispute resolution—as opposed to a bar association, which has more general goals—and it must have standards of practice or ethics, adherence to which is required as a condition of membership.” (page 6-3, section 6.1.2.b.)
MCFM and its membership requirements appear to fit the definitions proposed by Hoffman, in that MCFM requires new and renewing members to certify that they are in good standing in their profession and that they will uphold MCFM's Standards of Practice.
MCFM takes the position that membership in its organization satisfies the requirement of accountability to a dispute resolution organization as outlined in the statute. That said, MCFM does not give legal opinions on any issue.
Notwithstanding the presumed protection of the statute for mediators who do meet its requirements, there are rare instances in which mediators might receive a subpoena related to an action filed by a former mediation client. MCFM suggests that mediators include in their Agreements to Participate in Mediation and/or their Fee Agreements a provision that makes a party subpoenaing the mediator responsible for payment of the mediator’s time (at the mediator’s mediation billable rate) and responsible to reimburse the mediator for the cost of defense.
See sample Mediation and Fee Agreements in the Members’ Resources section of the MCFM website.
Approved by the MCFM Board on June 10, 2016, and reaffirmed with minor revision on September 12, 2016.