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.

My recent posting was on large commercial providers of mediation services, which prompted questions about low cost or free mediation services. 

Community mediation programs provide mediators for a wide variety of disputes. These vary from center to center but can include disputes between neighbors, landlord and tenants, roommates, homeowner’s associations, consumers and merchants, communities, families and workplaces. Community mediation programs do handle many what some would call minor disputes, but community mediators have assisted in major ones as well. 

Community mediation programs typically provide sessions at no charge; some accept a minimal charge on a sliding scale. Most will not turn anyone away for lack of funds. Some encourage donations; some are supported by local United Way and grants. 

The mediators are highly trained and experienced. Furthermore, as volunteers they are doing this because they are motivated to support their community. I would say some of the most talented I have met were community mediators.

In addition to mediation as the centers rely heavily on volunteers, they provide training, and that training is available to anyone in the community. Like their mediation services, the training classes are low or no cost.

Many community mediation programs also sponsor peer mediation programs in their local schools. These programs train youth to act as mediators. School-based peer mediation programs have been documented to reduce both verbal and physical conflicts while saving counselor and administrator time. 

By 1975 there were about a dozen community mediation programs; today there are an estimated 400 or more mediation centers handling some half a million disputes annually.

One way to find a local program is to do an internet search for “neighborhood mediation [insert your city name]” and “community mediation [your city name].” Be aware that the results may also include private mediators who charge for their services.