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From: John Fiske To: Les Wallerstein Cc: Oran Kaufman Subject: Re: clear as mud... Dear Les and Oran: If you’re a fiddler crab, nothing can be clearer than mud. Reading is fun because repetition can lead to new discoveries. You just called my attention to the first part of this oft-scrutinized sentence: “I conclude that whether or not the parties have chosen to maintain the confidentiality of the mediation....” Doesn’t that suggest that the parties have a right to choose NOT to maintain the confidentiality of the mediation? That is certainly more consistent with the concept of “selfdetermination” which ACR seems to be saying is the ultimate core of mediation. Yikes, as my mother in law would say. That means Bill and Sally could say, “Sorry, John, we want you to testify as to what Bill said during our third meeting and you wrote it down in your notes and we want you to bring your notes to court too.” Would one of you represent me (if) (the next time) that happens? If not, I could do my own fiddler crab imitation. Cheers, John From: Oran Kaufman To: John Fiske, Les Wallerstein Subject: RE: clear as mud... And people think this stuff is easy? Ethical issues abound! I have come down on the side of the confidentiality provsions being more like the evidentiary disqualification of husband and wife. Even if they waive it, the sessions are confidential. Otherwise, it is a very slippery slope- straight into the mud! Oran
Summer 2010 • Vol. 9 No. 3