IS WHAT I SAY IN MEDIATION REALLY CONFIDENTIAL?

I’m frequently asked if what is said in mediation is really confidential. To answer that question, we need to first consider the participants and the mediator separately. 

It does happen that a party may agree to mediate without any intention to settle for the only purpose of learning more about the other party’s case. 

Most mediators will ask participants to sign an “Agreement to Mediate” before the session. Typically, these agreements include a statement where the parties agree that all discussed will be strictly confidential. And, mediators will typically reinforce that understanding in their opening statement.

Rest assured that mediators have a long tradition of honoring confidentiality. Even in court-referred scenarios, the mediator does not report to the court what the parties said during the proceedings. In recent years, however, some important exceptions have developed. Mediators now have a duty to report reasonable suspicion of child abuse and/or domestic violence as well as an ethical responsibility to break confidentiality if they suspect a person may be in danger of harm. 

A comprehensive analysis of confidentiality was developed by U. S. Magistrate Judge Wayne D. Brazil in a case where the parties reached an agreement in the early morning after a lengthy mediation session. One party later disavowed the agreement claiming that she had been physically, intellectually and emotionally incapable of giving consent at that time. Both parties wanted the mediator to testify as to the claimant’s capacity to mediate. The mediator assumed that they could not be compelled to testify due to confidentiality. Judge Brazil made it clear that confidentiality in mediation should be thought of as a privilege in which case, if the parties waive confidentiality, the mediator cannot withhold testimony.

If confidentiality is important to one or both parties, I recommend they discuss it openly with their mediator before the sessions begin and act accordingly.