To keep or not to keep….

A few weeks back, I had an interesting chat with a colleague about record keeping. I was observing a mediation for my domestic requirement and noticed that the mediator archived the notes from the session. I, on the other hand, destroyed my notes. When asked about it, the mediator responded that he kept the notes in case the parties had questions about the settlement. In many cases (especially where the parties are represented on both sides), the full agreement is drafted later and the parties may have questions about the settlement.

This is the exact reason that Malaysian Mediator Chan Kheng Hoe says he destroys his notes. I tend to agree with Mr. Chan Kheng Hoe. Maintaining files of notes from your mediations can open a Pandora’s box. As he puts it,

keeping notes can always come with the risk of the notes being subpoenaed. It would be absolutely unlawful for me to dispose of notes once they are subpoenaed, regardless whether I think the subpoena to be proper or otherwise.

Furthermore, don’t you run the risk of becoming the arbiter of the agreement (or the dispute itself) if the parties believe that you hold the Rosetta Stone?