A good friend emailed me the other day asking if I had written anything recently on mediation confidentiality. I decided to call her in response, wondering if I had missed any news.
It turned out that she had a student who questioned the value and effectiveness of confidentiality in mediation. Like my friend, I was taken quite aback by this because “confidentiality,” along with self-determination, is one of the foundations of mediation. Without them, mediation would not be successful.
So, why are mediations confidential? The book I use to teach mediation ethics spends two chapters on this topic. (Waldman, Ellen, editor, Mediation Ethics: Cases and Commentary (Josey-Bass, San Francisco, Ca. 2011). As the editor explains:
Confidentiality in the mediation context encompasses two related but separate concepts. The first involves keeping disputant disclosures secret in all respects. The second involves protection from forced disclosure of mediation communications in subsequent legal proceedings. (Id. at 227-8.)
The first aspect – keeping disclosures secret- relates to self-determination. The information belongs to the party, so it is up to the party whether to share it. It is not up to the mediator to make that decision. The party, through self-determination, controls the information and whether to disclose it. (Id. at 228.)
The second aspect- to avoid the information coming out in court- is based on evidence statutes. Some states call it a “privilege” (that is, mediation confidentiality is an evidentiary privilege), while other states, such as California, frame it in terms of admissibility. What is discussed in mediation is neither admissible nor discoverable in subsequent civil, administrative, or other noncriminal proceedings. (California Evidence Code Section 1119)
Mediation Confidentiality serves three interests: It helps to strengthen the relationship, especially trust between the mediator and the parties. The parties must believe that whatever they share will not be made public or later used against them. (Id. at 229.) Second, it helps the mediator maintain her impartiality. No matter what a party tells the mediator (including the weaknesses of her case), the party knows the mediator will not take sides but treat each party objectively, evenhandedly, and with dignity and respect. (Id.) Third, it preserves the integrity of the process and party privacy. A party in mediation relies on the privacy of the process. (Id.) Thus, if parties must report to court after a mediation about the mediation, the parties are allowed only to state whether the parties appeared and whether the matter was settled. None of the details can be divulged. (California Evidence Code Section 1121). Indeed, should a party convey what occurred in mediation in vivid detail, her case may well be dismissed as a sanction for violating mediation confidentiality. ( See, Hand vs. Walnut Valley Sailing Club, 11-3228,2012 WL 1111137 (10th Cir. April 2, 2012) (unpublished) (https://casetext.com/case/hand-v-walnut-valley-sailing-club-6) (affirming dismissal of the case as a sanction for violating mediation confidentiality)
In essence, mediation confidentiality is viewed as “inviolate” “to maintain trust, encourage forthright disclosure and preserve parties’ faith in the process “ (Id. at 231.)
I sincerely hope that my friend’s student will come to understand the significance of mediation confidentiality and that it is not just another concept that is bandied about and ineffective.
…. Just something to think about.
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