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     All mediation training includes significant emphasis on the confidentiality of communications made during the mediation process and the mediator's duty to maintain the confidentiality of communications, positions, actions, attitudes, etc., of those involved unless the mediator is specifically given permission by the communicating party to disclose same.
     With that background, a review of how courts in certain other states have handled some of the questions which might be raised in court-ordered mediation may be helpful in understanding how the Arkansas courts might deal with those issues. Since the late 1980's, both Texas and Florida have had active court-ordered mediation legislation and programs. The result, in those states, has been a significant body of case law dealing with the issues which might grow out of mediation. A review of cases from those states indicate that there are three primary areas which have been presented to the courts. Of course, these three areas are not exhaustive of the issues presented but seem to be the areas most often litigated. They are: (1) the requirement of good faith negotiation in mediation; (2) confidentiality of communications in mediation; and (3) the enforceability of settlement agreements arising from the mediation process. Except as to confidentiality issues which arise in settlement agreement enforcement actions, for the purposes of this discussion, I want to deal only with the first two of these issues. Suffice it to say that the courts of most other states treat settlement agreements arising out of the mediation process much as they would any other settlement agreement that one party or the other attempted to rescind/enforce.

"GOOD FAITH NEGOTIATION"
     The first observation I would have regarding this issue, which is an observation held by most, if not all of the mediators I have discussed this issue with, is that "good faith" tends to lie in the eye of the beholder. In many mediations, once the parties have split into caucuses for the purpose of negotiation, a mediator will often hear from each caucus room that the other is not "acting in good faith."
     Is it "bad faith" if a party shows up at a court-ordered mediation and, after discussing the case with the other side, the mediator decides that he/she would rather have a jury decide the case? Is the failure to make any settlement offer necessarily in bad faith? Is it a failure to negotiate in good faith simply because one side does not think the other side's settlement offer is reasonable? Is a physician, in a medical malpractice case, who has the right to object to any settlement offer being made, acting in bad faith if he/she does object and refuses to allow his/her insurance carrier/attorney to make any settlement offers because he/she does not want a settlement payment reported to the data bank, thereby adversely affecting his/her future malpractice coverage? Is a Plaintiff acting in bad faith when he/she insists on a public trial because they believe that the Defendant's conduct should be publicly exposed? The situations which might result in a claim of lack of good faith in settlement negotiations are numerous, and, from a mediator's perspective, many times the motivations for engaging or not engaging in "meaningful" negotiations are unknown. Things are rarely as simple as they might otherwise seem.
     The courts in both Texas and Florida have adopted the "you can lead a horse to water but you can't make him drink" approach to "good faith" in negotiation issues. In Texas, trial courts early on in their court-ordered mediation experience sometimes included in their order referring the case to mediation a provision requiring the parties to negotiate in "good faith." Once these cases reached the appellate level, the appellate courts were quick to void such orders and overturn sanctions levied because of perceived violations of the "good faith" requirement. Decker v. Lindsay, 824 S.W. 2d 247 (1992); Hansen v. Sullivan, 886 S.W. 2d 467 (1994); Texas Parks & Wildlife Dep't v. Davis, 988 S.W. 2d 370 (1999). The appellate courts made it clear that while the trial court can order the parties to mediation, it may make no requirement of good faith negotiation nor, in fact, any inquiry into it.
     In Florida, in a case where the court said that the Plaintiff's "only basis for sanctions is merely that defendants were unwilling to make an offer of settlement satisfactory to him," the opinion of the court went on to say that the intent of court-ordered mediation legislation is not "to force parties to settle cases they want to submit to trial before a jury. There is no requirement that a party even make an offer at mediation, let alone offer what the opposition wants to settle." Avril v. Civilmar, 605 So. 2d 988 (1992).
     Some of the concerns of these states with respect to an inquiry into "good faith" negotiation involve the fact that such an inquiry would necessarily involve the disclosure of confidential information revealed at the mediation. There is concern that such disclosure to the trial court may lead to an appearance of prejudice on the part of the trial judge. In a Florida case, Fabber v. Wessel, 604 So. 2d 533 (1992), the petitioner moved to disqualify a judge because "privileged mediation communications" had been disclosed to him. The appellate court found that even though the complaining party could cite no particular prejudice from the disclosure, disqualification of the judge was necessary "because the simple fact of disclosure poisoned the proceedings." While a 1999 Florida case appears to limit the scope of the Fabber decision with regard to the showing of prejudice, the concurring opinion recommended disciplinary action against the attorney who disclosed the confidential information. Enterprise Leasing v. Douglas, 750 So. 2d 114 (1999).
     Finally, an observation regarding the "Catch-22" that an order requiring a mediator to report the "good faith" of the mediating parties puts the mediator in: The ethical guidelines of the Arkansas ADR Commission, quoted above, and the confidentiality provisions of Arkansas law arguably places a mediator in the position of either having to violate a court's order regarding a "good faith" evaluation or the requirements of the Commission which are based on Arkansas law. If the mediator refuses to comply with the court's order to disclose the nature of the negotiations (or lack thereof) of the parties, he/she may be subject to sanctions by that court. If the mediator complies with such an order, he/she is subject to having his/her certification revoked by the Commission, thereby being unable to participate in future court-ordered mediations.
     And a second "Finally." I wonder how many mediators would even be comfortable in making a qualitative determination as to a party's motives in how they choose to negotiate in a particular dispute?

RELATED ISSUES
     There are separate but related issues regarding participation in a mediation. A trial court may require that certain persons actually attend the mediation and/or that persons with actual or "ultimate" settlement authority attend. But cases arising out of a party's failure to do so appear to turn not on the party's "good faith" in negotiating a settlement but on compliance with the court's order, e.g. Texas Dep't of Transp. v. Pirtle, 977 S.W. 2d 657 (1998)(upholding costs and attorney's fees against the Texas Department where it admittedly refused to mediate) and Luxenberg v. Marshall, 835 S.W. 2d 136 (1992) (upholding striking of pleadings as sanctions for violation of pre-trial orders including failure to attend mediation). Such sanctions appear to arise out of a party's blatant violation of the court's order just as any other violation would be sanctioned.
     Additionally, while it would not be too hard to determine whether or not a party attended the ordered mediation, determining whether or not it was necessary that the attendee have "ultimate settlement authority" might be more difficult. For example, if in a personal injury case where the Plaintiff has incurred $2,000.00 in medical expenses, has lost no time from work, has no future medical expenses expected and has no continuing physical or mental complaints, is it appropriate to require the insurance claims supervisor in New York to attend the mediation in Arkansas simply because he/she is the only one in the company who has the authority to pay out the $1,000,000.00 policy limits? Sometimes insurance companies make a determination of settlement value by committee and such evaluation cannot be changed except by committee. Does the committee have to attend?
     On the other hand, having only the defense attorney present, or present with a local independent adjuster who has no authority to do anything other than to sit and listen and whose instructions are to phone the home office every time a demand is made by the Plaintiff so that the claims person in charge of the file can tell them what response to make, is inappropriate and frustrates all of the parties involved, including those attending on behalf of the defense.

CONFIDENTIALITY
     The protection of the confidential nature of communications in a mediation session is perhaps the most important reason that courts do not inquire into whether or not the parties engaged in negotiations in "good faith." Any such inquiry necessarily involves (either directly or indirectly) disclosure of communications and/or information exchanged during the mediation. However, there are other issues with respect to confidentiality in a mediation.
     The courts of Texas and Florida have been very protective of the confidential nature of mediation communications and have balked at anything that would violate that confidentiality. In addition to the "good faith" cases, at least two other areas have arisen in which disclosure of confidential mediation communication has been and is being addressed. One is in the enforcement of settlement agreements. The other has to do with causes of action which arise out of the mediation session itself.
     With regard to the enforcement of a settlement agreement, there are the issues that arise when the agreement reached during the mediation was oral and those that arise when the parties disagree as to what the terms of a written settlement agreement mean or when a mistake is alleged to have occurred.
     Florida has determined that where there is no alleged settlement growing out of a mediation, any statements made during that mediation shall remain confidential but that when a "mutual mistake" is alleged to have occurred in a written, executed settlement agreement, the confidentiality "privilege" does not bar evidence as to what occurred in the mediation. DR Lakes, Inc v. Bradsmart USA of West Palm Beach, 819 So. 2d 971 (2002) (evidence allowed to correct "a $600,000.00 mutual mistake"). However, a unilateral mistake was not compelling enough to allow the introduction of mediation communications. Feldman v. Kritch, 824 So. 2d 274, (2002) (where the insurance carrier for the defendant forgot to include in the settlement agreement a credit it claimed entitlement to). Testimony as to oral settlement agreements has been barred by the Florida Courts, Royal Caribbean v. Modesto, 614 So. 2d 517 (1992) as has testimony regarding unexecuted written settlement agreements, Hudson v. Hudson, 600 So. 2d 7 (1992) and a settlement agreement executed only by an attorney for a mediating party where the state law governing mediated settlement agreements required execution by both the attorney and the party, Gordon v. Royal Caribbean Cruises Ltd., 641 So 2d 515 (1994).
     The courts of Texas are not quite as clear regarding the admissibility of mediation communications in connection with the enforcement of settlement agreements, but appear to be somewhat consistent with Florida's approach. The Texas courts have ruled in various cases that when a dispute arises regarding the enforceability of a settlement agreement reached in mediation, the parties must resort to a breach of contract action thereby entitling the parties "the right to be confronted by appropriate pleadings, assert defenses, conduct discovery and submit contested fact issues to a judge or jury." Cadle Co. V. Castle, 913 S.W. 2d 627 (1995); Mantas v. Fifth Court of Appeals, 925 S.W. 2d 656 (1996). In Avary v. Bank of America, N.A., 72 S.W. 3rd 779 (2002), discussed in another context below, the Texas court discussed the fact that the enforcement of mediated settlement agreements involve confidentiality concerns and that the language of Cadle, above, implies that "evidence relating to (i) the parties' intent in entering into a settlement agreement, (ii) any ambiguity in the agreement, and (iii) affirmative defenses to a claim for breach of the agreement could, in some circumstances, involve evidence of otherwise confidential mediation communications."
     Other cases from Texas, when considered in light of the language of Cadle and the prospective interpretation of that language contained in Avary, further confuse the issue. In Vick v. Waits, No. 05-00-01122-CV (Tex. App. Dist. 5, 06/04/2002)1 the Court of Appeals for the Fifth District of Texas stated that "appellant's ability to bring suit for fraudulent inducement (in entering into a mediated settlement agreement) does not answer the question of whether appellees' statements made during mediation are admissible." The court refused to make an exception to the confidentiality provisions of the Texas ADR Act with regard to claims of fraudulent conduct inducing one to enter into a mediated settlement agreement. And in Hur v. City of Mesquite, 893 S. W. 2d 227 (1995), a Texas intermediate appellate court apparently ignored the Texas Rules of Civil Procedure, Rule 11, and other case law to the contrary, in allowing the enforcement of an oral agreement reached in mediation, rejecting confidentiality objections.²
     Then there are two recent cases which, while they discuss the Texas approach to confidentiality in various circumstances, have opened the door to the disclosure of what might otherwise be considered confidential mediation communications in a certain type of case. The cases are: Avary v. Bank of America, N.A., cited above, and Alford v. Bryant, 137 S.W. 3rd 916 (2004). Both are cases from the same Texas intermediate appellate courts and, as I understand it, both are on appeal to the Texas Supreme Court for it to address the confidentiality issues raised. In substance, both involve independent claims which allegedly arose during a mediation. One involved a claim by a client against the lawyer who was representing her in the mediation (Alford) and the other by the guardian of the estates of minors against the executor of the estate of a decedent of which the minors were beneficiaries, both of whom were involved in the mediation (Avary). Both alleged that the fiduciaries (attorney/executor) breached their duties in the course of the mediation by failing to disclose something to the party they owed the fiduciary duty to. The Texas courts described the causes of action as "new" causes of action growing out of the mediation and not involving the underlying claims that had been mediated. Both cases (Alford relying on the authority of Avary) held that because it was a "new" cause of action, testimony regarding what occurred during the mediation would be allowed and in one (Alford) the mediator could be called to testify as to what occurred.

CONCLUSION
     Confidentiality concerns run throughout many of the issues which might arise as a result of a mediation process. The reason, of course, is that the litigation of perceived wrongs arising during a mediation necessarily involves exploring what happened during the mediation session which, in turn, risks (and, perhaps requires) the disclosure of what would otherwise be considered confidential communications.
     When the Arkansas legislature initially adopted the code sections which are particularly applicable to mediation as an alternative dispute resolution process, it specifically protected the communications and any writings of the parties and/or mediator generated during the course of the process. It, additionally, provided that the participants would not be "required to testify in any proceedings related to or arising out of the matter in dispute or be subject to process requiring disclosure or production of information or data relating to or arising out of the matter in dispute."³ The National Conference of Commissioners on Uniform State Laws has drafted what it refers to as the Uniform Mediation Act which apparently is soon to be considered for adoption by the Arkansas legislature. It contains at least three specific sections dealing with the creation of the "privilege" for communications made during mediation sessions.⁴
     While whether or not Arkansas needs to adopt a uniform act relating to a subject that is already governed by existing law and which has come under substantial criticism⁵ is debatable, the issue of confidentiality is, nevertheless, of paramount importance to the mediation, legal and judicial communities because that issue does, in fact, run throughout virtually all of the issues which may arise as a result of a mediation. Participants in mediation need to know the extent to which their communications are protected if that protection is not to be absolute. Many in the mediation community are very protective of the confidentiality of mediation communications and would, most likely, opt for an absolute protection. Whether or not that protection will, in fact, be absolute, is an issue to be determined judicially. The courts of at least two of the states which have been dealing with such issues the longest appear to have been very protective of the confidentiality of mediation, and it would appear reasonable to assume that the courts of Arkansas will do likewise.

ENDNOTES
1. This unpublished opinion is not capable of being cited for authoritative purposes     under Texas law but is discussed here solely for illustration purposes.
2. The Hur case appears to be an aberration which has apparently been uniformly     ignored by the Texas courts.
3. A.C.A. § 16-7-206(b)
4. See Sections 4, 5 & 6 Uniform Mediation Act (Last Revised or Amended in     2003) at www.law.upenn.edu/bll/ulc/mediat/2003finaldraft.htm
5. See various articles at www.mediate.com. •