Case Analysis on Employment Discrimination
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Case study on employment discrimination in the work place.
should parties in mediation discuss with others what was discuss during mediation.
So the have the right to breach confidentially in court?
Joan has alleged that Tanya discriminated against her when Tanya yet again gave Jim, rather than her, a career-building assignment. Both parties agreed to seek mediation regarding their case, as an alternative to their dispute. During a very relaxed joint session, Joan asked Tanya why she had given the assignment to Jim. Tanya answered that she thought Jim would do a good job and, as an afterthought, jokingly added "besides...he's cute."
Shortly afterward, the mediator asked to meet with Tanya in separate caucus. The mediator and Tanya did some reality testing on the strengths and weaknesses of her case.
The case does not settle and Joan requests a hearing at the EEOC.
Variant 1: In the hearing, Joan wants to testify that Tanya had said that Jim was "cute." Can she?
Variant 2: Is there any way the parties could have protected the confidentiality of the communications they made to each other?
Variant 3: In the EEOC hearing, Joan wants to ask Tanya about what she said to the neutral in the separate caucus. Can she?
Variant 4: In the hearing, Joan wants to ask Tanya about what the neutral said to her in separate caucus. Can she?
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Variant 1: In the hearing, Joan wants to testify that Tanya had said that Jim was "cute." Can she?
Although it could be argued that the relaxed environment of the joint session gives the impression that this statement was made in the context of general discussion and Tanya said it jokingly (which makes it even more like general discussion between Tanya and Joan), it should be considered a disclosable statement. But remember, an objection should be raised as to its admissibility since they were in an active mediation session. All information shared in the mediation that is not independently learned outside the mediation is considered confidential. That pertains to legal proceedings, as well as discussion with family and friends. Furthermore, no one - including the mediator - can be asked to testify as to what was said in mediation, regardless of whether or not the case is resolved.
Variant 2: Is there any way the parties could have protected the confidentiality of the communications they made to each other?
Absolutely; both parties should have created and signed a confidentiality agreement that covered all conversation regarding the dispute. This is a normal part of the mediation process (however, the scenario does not mention one being produced). I have included a standard confidentiality agreement below:
The undersigned (Parties and Witnesses) agree to the below terms of confidentiality in mediation:
- The parties agree to try to resolve this case through mediation. The parties understand that settlement during mediation is entirely voluntary.
- The parties understand that ...
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