The new movie Spotlight might be about the most exciting drama that could be made about filing a motion to unseal court records. (Some viewers might say that the movie is also about how a team of investigative journalists uncovered widespread pedophilia in the Catholic Church in Boston, but the legal fight to obtain access to sealed documents was of course the part of the story I focused on.)
Confidentiality agreements often serve the short-term interests of the parties to a particular dispute: An enterprise accused of wrongdoing has a strong interest in keeping its alleged wrongful actions secret, both to protect its reputation and to dissuade others from suing. At the same time, individuals bringing such accusations have an incentive to agree to requests for secrecy, which are often demanded in exchange for settlement payments. In this film, such confidentiality agreements are portrayed as a shameful practice that allowed the Church to cover up crimes for decades and keep predators at large. The legal system’s complicity in the sort of confidentiality that allows evidence to be suppressed, criminals to be spirited away, and victims to remain in the shadows, is portrayed as an obstacle that must be overcome in order to allow justice and healing for abuse victims.
We should, however, distinguish the kinds of protective orders and confidentiality agreements that had to be defeated in the Church abuse cases, from the need to conduct settlement negotiations in private, without fear that admissions or offers might be used against parties in that particular case.
I have been involved in efforts to protect the confidentiality of settlement negotiations–mediation confidentiality in particular. Confidentiality is essential to the practice of mediation and to settlement negotiations in general, as the evidentiary bar against the admissibility of settlement negotiations encourages parties to speak candidly without fear that their offers and admissions may be used against them in later court proceedings. Without the shield of confidentiality, parties might be reluctant to engage in spirited settlement negotiations, and cases might be less likely to resolve in a consensual manner. Without the protection of confidentiality, parties are more likely to be forced into adversarial confrontation, and less likely to find a cooperative means of obtaining resolution. Without an evidentiary rule against the admissibility of settlement negotiations, parties are more likely to move back toward needlessly destructive litigation.
While the confidentiality of settlement negotiations generally deserves strong protection in individual cases for the benefit of those parties, courts must still be mindful of the over-use of protective orders and other efforts to hide wrongdoing in individual cases from public view. This is where the courts have to balance the interests of the public, including the interests of other potential victims of wrongdoing, against the desires of the parties in a particular case to keep the terms of their settlements confidential. Parties and their attorneys should also be mindful of the potential over-use of protective orders and settlement confidentiality provisions, which can create traps even for the parties in a particular case, and which may also harm the public interest.
As shown by my last few posts, Spotlight is only the most recent in a spate of movies this year featuring powerful legal themes. We are fortunate to have such a feast of thoughtful legal dramas.
Joe Markowitz is the 2014 President of SCMA. He has been a trial lawyer for more than 30 years, and has conducted mediations for more than 15 years. He has substantial experience in all forms of dispute resolution: litigation, arbitration and mediation; and is well-versed in numerous substantive areas of the law, including employment law, intellectual property, commercial and corporate law, real estate, and bankruptcy.
Law Offices of Joseph C. Markowitz 350 S Figueroa St #975 Los Angeles, CA 90071