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NCJRS Abstract

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NCJ Number: 159225 Find in a Library
Title: Drafting Mediation Privileges: Lessons From the Civil Justice Reform Act
Journal: Seton Hall Law Review  Volume:26  Issue:1  Dated:(1995)  Pages:1-43
Author(s): M A Perino
Date Published: 1995
Page Count: 43
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: This article analyzes the plans and local court rules in various Federal court districts to demonstrate some of the problems that can arise when drafting mediation confidentiality provisions under the Civil Justice Reform Act of 1990 (CJRA).
Abstract: CJRA required each Federal district court to implement a civil justice expense and delay reduction plan by the end of 1993 to implement mechanisms to address causes of excessive expense and delay in the Federal courts. The analysis revealed that the mediation confidentiality rules created in response to the CJRA vary widely in the scope of protection they afford. Some provisions are overinclusive; they create absolute or near-absolute protection for medication communications while failing to provide for any exceptions to confidentiality. These provisions also typically fail to give the court any guidance regarding the appropriate factors to consider in deciding whether to overcome the privilege. Other provisions are underinclusive, or are poorly drafted, making it unclear what information is protected. These problems may give rise to significant disputes in the future. Therefore, courts that have no confidentiality rule should seriously consider doing so, while those that already have a rule should consider whether it properly protects mediation confidentiality. Footnotes and appended excerpt from legislation
Main Term(s): Alternative court procedures
Index Term(s): Confidential records access; Criminology; Legal privacy protection; Mediation
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