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Mediation/ADR Tip: Value of Confidentiality

In some mediations a plaintiff, feeling unjustly treated, disrespected, angry and hurt, wants to publicize what the defendant did to her or him. We have managed to work through those and reach settlement, thus squelching both sides' "tell all" about the other. One of the many advantages to mediation over litigation is the ability to reach an accord and satisfaction, to put the matter behind everyone, and move on, without fear that the dispute will rear its head again.

In contrast, in litigation, most parties are free to, and do, say whatever they want, to whomever will listen. It could be as public as the press, or as private as donors to a nonprofit, or customers of a business or prospective employers of the plaintiff. One example of too much publicity is reflected in a recent case (Gotterra v Travolta etc, 2014 DJDAR 9534), brought against John Travolta- yes, that John Travolta. A former employee (Gotterra) served as Travolta's private pilot for 3 years. He left his position in 1987, and everyone entered into a written termination agreement. There were two versions, 2 weeks apart, one of which was signed with a confidentiality clause, the other was unsigned. Nearly 25 years later, plaintiff decided to write a "tell all" book including details of his personal relationship with Mr. Travolta, after another employee publicized such allegations in the "gossip tabloids". Plaintiff had responded to several publications, and Mr.Travolta's team sent "cease and desist" letters, citing the confidentiality agreement signed in 1987. Plaintiff requested the agreement but got no response. Sometime later they sent the agreement to Plaintiff's attorney who challenged its authenticity, & filed a complaint with one claim-Declaratory relief. Travolta's attorneys filed a SLAPP motion to strike the complaint. The Court denied the motion. The Court of Appeal upheld the denial, as the conduct was not covered by the statutes. There is now a published court decision and the plaintiff Mr. Gotterra gets to proceed (2 years later) with his Declaratory relief action, with the potential for a court giving the green light to write his book.

So what does this have to do with mediations? Confidentiality! Of course most people's public disputes are not as racy or interesting to the public, but, there is a benefit to keeping such disputes under wraps. The parties here could have stipulated to binding arbitration with confidentiality, at least until it the decision; if the plaintiff succeeded he would be able to write his book, but if Travolta prevailed, no book and no further publicity. In the more "average" non-celebrity case, particularly involving someone's career, the public record of litigation is open for every prospective employer to see, and may not help the plaintiff who is seeking another job. It may hurt the employer as well depending on their reputation and the allegations. However, submitting the dispute to mediation allows for a completely confidential process through which everyone can air their grievances, and a confidential and binding settlement can be reached. Laundry aired? or kept private with the potential for resolution? In most cases, people are better served by keeping their disputes private.

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