109 N.J.L.J. 294
April 8, 1982
Attorney in Mediation Program
Obligation to Report Information to Authorities
The inquiry presented is:
Whether an attorney who participates as a mediator in a
voluntary mediation program operated under the auspices of the
Community Justice Institute is required, under the disciplinary
rules, to breach the confidentiality established within that
program and to disclose material uncovered during a mediation
session to law enforcement authorities or others who may have an
interest in such material.
We are advised that the program is intended to provide mediators whose function is to attempt to resolve conflicts and disputes involving, among other things, domestic matters, neighborhood controversies, problems between consumers and businessmen as well as disputes between employer and employees which arise in the community. The program is also structured to receive referrals from the police department and municipal court clerk at the pre-complaint level. Mediators are recruited from the community and include members of the bar and other professionals. Attorneys who participate in the mediation program do not participate as attorneys as such but only as volunteers whose particular profession or experience is not disclosed to the parties involved in the proceedings. The project's policy regarding confidentiality is that while mediators will not volunteer that communications are to be considered confidential, they will advise the parties involved, if asked, that they will attempt to maintain confidentiality. Of particular concern to the inquirer is the situation where in the course of mediation the attorney mediator might learn that a participant has committed or intends to commit a crime, or a fraud or had or is committing child abuse and, if so, whether he would be required to disclose such situation to the authorities.
We are referred by the inquirer to DR 4-101, DR 7-102 and this Committee's Opinions 227, 95 N.J.L.J. 65 (1972); 247, 95 N.J.L.J. 1271 (1972); 280, 97 N.J.L.J. 361 (1974); and 280 Supplement, 97 N.J.L.J. 753 (1974). All the foregoing relate to the attorney-client relationship. That relationship does not exist in the factual situation here presented. Consequently, there are no professional confidences or privileges with which to be concerned.
We are asked whether because a mediator is a member of the bar he has an affirmative obligation to disclose to the appropriate authorities information relating to crime, fraud, child abuse, etc. which comes to him in his capacity as a mediator. We are concerned with public policy considerations relating to the protection of the public against those who violate the law. However desirable it may be as a matter of public policy to have the information disclosed, we can perceive no logical reason why an attorney-mediator should be required by ethical considerations to disclose information which nonattorney mediators may keep confidential. To determine otherwise would defeat attorney participation in the mediators' program and could result in serious equal protection claims. Accordingly, we answer the inquiry in the negative.