A question was asked of me recently, as to why I did not keep notes of a mediation process. This was asked by a party who found the other party unwilling to follow-through on its obligations which have been verbally agreed during mediation. Am I unhappy with the recalcitrant party? Sure. Would I change my practice to start keeping notes? No way. Consider it:
a. Parties in mediation are already in dispute. It is not that I as the mediator am pushing parties into dispute. They are already going at each other. I'm just trying to help them reach a livable resolution.
b. Parties need to have the absolute confidence in the confidentiality of the process in order for mediation to work. If not, we might as well take every dispute to trial. Why should admissions and concessions be made, and alternative resolutions be pursued, if there is no confidence in the confidentiality of the process? I may help one party in one dispute resolve its issue by keeping notes, but I definitely won't be helping in the big picture of promoting mediation as a viable dispute resolution methodology.
c. Unlike advocates and solicitors who can hide behind the veil of confidentiality due to solicitor-client privilege, a mediator may not have the same protection in law. Hence, keeping notes can always come with the risk of the notes being subpoenaed. It would be absolutely unlawful for me to dispose of notes once they are subpoenaed, regardless whether I think the subpoena to be proper or otherwise. If I don't keep notes, then the only person they can subpoena is myself, and by the time the matter goes to trial, I would plead both legal and contractual confidentiality, as well as the passage of time having blurred my memory. Confidentiality is absolutely preserved.
Do I take notes during mediation? Definitely. Do I keep them? Not at all.
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Kheng Hoe can be reached at khenghoe@mycounsel.com.my
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