What Happens in Mediation Stays in Mediation
Think it couldn’t happen ? Consider this timely piece of news that was splashed across the Huffington Post, Washington Post and other journalistic organs in the last 24 hours. In the wake of the tragic school shootings in Connecticut, the media were desperate for any information about the shooter and his family. No detail was too small to be overlooked. Somehow the media found the woman who had mediated the shooter’s parents’ divorce case in 2009 and got her to reveal or confirm for them information over and above that which was available in public court documents. Suddenly she got the PR she might have thought she wanted, but her possible violation of mediator confidentiality also got her noticed in unwelcome ways. As she is also a licensed therapist, it’s possible that she has violated HIPAA rules by sharing some of this information, which may present yet another problem for her. What should she have done ? A simple “no comment” was the appropriate answer for her. And depending on the ethics rules you operate under, it may be the best response for you whenever you are approached by the media.
You’re Supposed to SHARE … Not COPY !
However the key word here is LINK. You cannot legally or ethically take material that someone else created and claim it as your own work product. To take an entire article that someone else has written and publish it either in your newsletter or on your website without attributing it to the original author is a copyright violation. If, on the other hand, you read a great article and contact the author for permission to reprint that’s fine. Similarly if you write a teaser paragraph and then link the reader to the site where the article was originally published, you’re fine. You’ve not claimed the article as your own … you’ve just brought it to the attention of the reader by sharing it. What good does this do for you in marketing your practice ? You’ve led the prospective client to great material, which ensures that they will continue to read your newsletter or refer others to your website. You have implicitly associated yourself with the interesting content and in so doing, elevated your status as a mediator based on the quality of the content.
People also share similar content on social media sites, and when they do, the same rules apply, although it isn’t normally as big an issue. It would be difficult in most social media environments to copy and repost an entire article. At best you get to post a teaser and a link to the original site for the content. Thus, in this instance, you’ve not attributed the material to yourself and not created a copyright violation. To be safe however, you might choose to mention the original author or source in your teaser so that it will be very clear that you did not write the article.
The Ethical Perils of Social Media
Depending on the mediation ethics rules you are subject to and the terms of the mediation contract you have with your parties, an obvious ethical issue could arise if you discuss a mediation or its contents in any way on social media. You probably shouldn’t walk out of a mediation and Tweet – “Just settled another one - $800K agreed to by both parties” without the express written permission of the parties. But you might also think twice about posting a comment thanking by name any of the participants. Even thanking any of the attorneys who were present might give others the information they need to determine which confidential mediation you are talking about. Heck, by just thanking them online you’re confirming that there was a mediation and you were in attendance ! If this information was intended to remain confidential, congratulations, you’ve just violated your promise to your parties. Know your confidentiality obligations and rules and have a clear, written understanding with the parties and their attorneys on what you can and can’t discuss.
It’s also very important to draw a firm line on social media between your business life and your personal life. For those of you who maintain a business page on Facebook or a personal account on Twitter, you have to manage your followers carefully. In the case of Facebook, you also need to set your privacy settings so that only your friends can see what you posted and even they can’t share it with their friends. Why, you ask ?
Consider the mediator who was lucky enough to be selected to mediate the
NHL dispute about three weeks ago. Somehow (perhaps the players union or
the NHL put out a press release) the name of the mediator showed up in the
media. Immediately fingers on keyboards across North American began
searching for this individual. Sports media types need content for their
articles (especially in light of the fact that they don’t have hockey
games to write about), and the only articles they were going to be able to
write in the beginning were about the mediator and whether or not they
thought the mediation would succeed.
This is a Violation of the Google AdWords Terms of Service
You need to understand clearly that it is a violation of Google’s contract with you to use the name of one of your competitors or their firm name as your keyword. For instance, if someone is looking for Kenneth Feinberg, they aren’t looking for you. Running an ad for you or your practice that would pop up when the searcher keyed Mr. Feinberg’s name is enough to get Google to cancel your ad and ban you if another user reports you.
The only instance where this behavior might be remotely ethical is if you are part of a panel and one of your members has retired or passed away. Then you might choose to use the retired panel member’s name as a keyword to pop a Google ad. That ad should then take the reader to a back page on your website that has a nice photo of the newly retired individual and copy that says he or she has chosen to enjoy the fruits of many years of labor and is no longer available to mediate cases. However, there are many other members of your panel who would be happy to assist.
When in Doubt….Just Don’t Do It