What!? Isn’t What I Said in Mediation a Secret?! - Part 1
One reason I like mediation is because it allows the parties to agree on a solution to their dispute that works for them. This requires some level of candor with one another about what’s really at the heart of the dispute. To promote that candor, most legal regimes promoting mediation protect the information shared in a mediation from disclosure.
Those protections can vary by jurisdiction and if more than one jurisdiction is involved, the application of those protections becomes even more complex. This post will explains the sources and types of information that are protected.
PROTECTIONS FOR INFORMATION
You might think disclosure is disclosure, but that’s not necessarily the case. Rules protecting information from disclosure are categorized in two basic ways: confidentiality and privilege.
Confidentiality – Confidentiality means that information won’t be disclosed to anyone else. This protection is useful if a party is concerned about damage to reputation or the loss of value of proprietary information is shared broadly. Reputational concerns often arise in family disputes or other personal legal matters. Proprietary information protection is usually a concern in a commercial dispute. Just think what would happen if Coca Cola’s recipe were shared with the public, for example.
Privileged – In contrast, information is privileged if a court cannot compel disclosure in a legal proceeding. Suppose a party wants to admit some responsibility for a dispute, wants to acknowledge that the dispute isn’t solely the fault of the other party, that they both played a part in the controversy’s escalation. Suppose the party wants to apologize. This admission and apology might allow the other party to move beyond their differences and agree on a settlement. But the party who is thinking to make such an admission may be concerned it will be given too much weight by a jury or judge hearing a dispute. The disclosing party therefore may not want to admit any such responsibility without knowing the statement is privileged – that it cannot be discovered in any later court proceeding.
WAYS CONFIDENTIALITY/PRIVILEGE IS PROTECTED
Disclosures of confidential or privileged information are prohibited and/or prevented in different ways, in different legal systems.
Scope and Source of Confidentiality - Most agreements to mediate include an undertaking by the parties not to disclose to anyone else what is said in mediation. Generally, if the parties agree to keep something confidential, that promise will be honored. Some jurisdictions have also adopted specific mediation laws providing that the parties in mediation must not share disclosures outside the mediation, with only very limited exceptions. Even so, it is important to be clear about the scope of such confidentiality. Documents that already exist before mediation typically aren’t made confidential merely by mention in a mediation and documents prepared for a mediation may or may not be treated as confidential. Also, some information just isn’t protected from disclosure. For example, if a party admitted to abusing a child, then certain individuals, such as social workers, must report that abuse. Threats of violence often aren’t protected either. A party to a mediation therefore needs to understand both what’s covered in such an agreement or law and what exceptions might apply.
Scope and Source of Privilege - Laws, regulations, court rules, court decisions, and ethical rules all will often address what evidence can be shared in court. Depending on the nature of what a court wants to consider as evidence in a dispute and the type of dispute involved, these laws, rules and the like can vary significantly. Some courts limit evidence to what the judge requests and the judge, as a custom, may not ask for any information from a mediation. In the U.S., some states have adopted the Uniform Mediation Act, which has a broad prohibition of use of information from a mediation in court, with very specific exceptions. Those specific exceptions relate to such things as threats of violence, intent to commit a crime, or concealing on-going criminal activity. Other courts, including many U.S. jurisdictions, allow broad submission of evidence, but then expect the judge or jury to weigh the evidence to decide what’s relevant. As a result, those U.S. states often have specific procedural rules about when and what type of information from a mediation can be shared. They rely on evidence rules that tend to be more nuanced and subject to dispute about the types of evidence from mediation that can be shared or will not be admitted, as compared to the Uniform Mediation Act. Some have questioned whether those evidence rules apply to a mediation that isn’t required as part of a litigation process, as well. The scope of privilege has become a complex enough issue in California that, as of 2019, the state requires a mediator to provide all parties to mediation with a specific notice about the evidence rules governing information shared in mediation to make sure the parties understand the limits on what cannot be discovered and what cannot be used in testimony/court proceedings.
I’ll provide more information on the consequences of breaching these obligations of confidentiality and privilege in my next post. Stay tuned!