September 08, 2016 Articles

Questions Every Litigator Should Ask about Mediation Confidentiality

By Rachel K. Ehrlich and Emily E. Garrison

Litigators use mediation to facilitate the exchange of information, flesh out and narrow issues, and resolve matters expeditiously. To limit the risk associated with achieving these benefits, most participants agree to be bound by “mediation confidentiality,” which promotes candor and thus facilitates mutually beneficial solutions. Sometimes the mediator or a court supplies the confidentiality agreement, and sometimes a state’s mediation statute makes the mediation automatically confidential. Litigators, focused on resolution of the dispute at hand, may not contemplate the consequences of mediation confidentiality. But they should. Litigators need to understand what mediation confidentiality may not protect and how mediation confidentiality agreements may affect future proceedings. Here we address key questions to consider before your next mediation.

What Protections Are Provided in My Jurisdiction?
The rules for mediation confidentiality vary among jurisdictions. Some jurisdictions have strict rules protecting the confidentiality of mediation communications and materials. In California, for example, the stringent confidentiality provided by Evidence Code sections 1115–1128 has been repeatedly upheld. Section 1119 states that neither “evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” nor any document “prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation” is admissible or subject to discovery. Disclosure of such evidence cannot be compelled by any noncriminal proceeding, whether it be arbitration, administrative adjudication, or a civil lawsuit. The same section further provides that “[a]ll communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.”

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