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against such an expansion of this exception because such past | | conduct can already be disclosed in other important ways. The | | other parties can warn others, because parties are not | | prohibited from disclosing by the Act. The Act permits the | | mediator to disclose if required by law to disclose felonies or | | if public policy requires. |
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| | | It is important to emphasize that the Act's limited focus as | | an evidentiary and discovery privilege, rather than a broader | | rule of confidentiality means that this privilege provision | | would not prevent a party from calling the police, or warning | | someone in danger. |
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| | | Finally, it should be noted that this exception is intended to | | prevent the abuse of the privilege as a shield to evidence | | that might be necessary to prosecute or defend a crime. The | | Drafters recognize that it is possible that the exception | | itself could be abused. Such unethical or bad faith conduct | | would continue to be subject to traditional sanction | | standards. |
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| | | 6. Section 6(a)(5). Evidence of professional misconduct or | | malpractice by the mediator. |
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| | | The rationale behind the exception is that disclosures may be | | necessary to promote accountability of mediators by allowing | | for grievances to be brought against mediators, and as a | | matter of fundamental fairness, to permit the mediator to | | defend against such a claim. Moreover, permitting complaints | | against the mediator furthers the central rationale that | | States have used to reject the traditional basis of licensure | | and credentialing for assuring quality in professional | | practice: that private actions will serve an adequate | | regulatory function and sift out incompetent or unethical | | providers through liability and the rejection of service. See, | | e.g., W. Lee Dobbins, The Debate Over Mediator Qualifications: | | Can They Satisfy the Growing Need to Measure Competence | | Without Barring Entry into the Market?, U. Fla. J. L. & Pub. | | Pol'y 95, 96-98 (1995). |
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| | | 7. Section 6(a)(6). Evidence of professional misconduct or | | malpractice by a party or representative of a party. |
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| | | Sometimes the issue arises whether anyone may provide evidence | | of professional misconduct or malpractice occurring during the | | mediation. See In re Waller, 573 A.2d 780 (D.C. App. 1990); | | see generally Pamela Kentra, Hear No Evil, See No Evil, Speak | | No Evil: The Intolerable Conflict for Attorney-Mediators | | Between the Duty to Maintain Mediation Confidentiality and the | | Duty to Report Fellow Attorney Misconduct, 1997 B.Y.U.L. Rev. | | 715, 740-751. The failure to provide an exception for such | | evidence would mean that lawyers and fiduciaries could act | | unethically or in | | violation of standards without concern that evidence of the | | misconduct would later be admissible in a proceeding brought | | for recourse. This |
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