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Confidentiality in Mediation: An Application of the Right to Privacy

Oberman, Susan. Ohio State Journal on Dispute Resolution, Jan. 1, 2012

The author discusses the tension between mediation's promotion of confidentiality and the constitutional right to privacy. She extensively reviews the history of Constitutional privacy protections. In addition, she describes existing statutes and rules on confidentiality in mediation, noting their lack of uniformity and the potential limits to their protections. If parties are not aware of these limits, the author argues, their right to privacy may be violated in mediation. This is especially the case in instances where the party is required or feels pressured to participate in mediation. In order to protect that right, the author calls on mediators to inform them about "the legal rights and limitations represented in the choice to maintain or waive confidentiality in mediation" (p 542).

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