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How Confidential Are Mediation Communications? – Judge Raymond T. Lyons
MONDAY, JULY 6, 2020
“Confidentiality is an important feature of the mediation and other alternative dispute resolution processes. Promising participants confidentiality in these proceedings promotes the free flow of information that may result in the settlement of a dispute.”
“Were courts to cavalierly set aside confidentiality restrictions on disclosure of communications made in the context of mediation, parties might be less frank and forthcoming during the mediation process or might even limit their use of mediation altogether. These concerns counsel in favor of a presumption against modification of confidentiality provisions of protective orders entered in the context of mediation.”
Not everyone agrees that mediation confidentiality is without risk. It may preclude claims of legal malpractice or inappropriate conduct by the mediator. Nevertheless, when one is contemplating mediation, it is a good idea to consider what confidentiality law will apply.
Confidentiality might be provided by a statute (such as the Uniform Mediation Act), court rule or order, rules of alternative dispute resolution (ADR) providers such as the American Arbitration Association, Judicial Mediation and Arbitration Services and Federal Arbitration Inc., or by a private agreement. Although mediation confidentiality is generally enforced in many contexts, there are exceptions.