Confidentiality is one of the most-important aspects of the mediation process. In the context of mediation, confidentiality means that information disclosed during mediation cannot be disclosed to third parties or used in court proceedings. This is primarily to encourage parties to be open and honest and make full disclosure of relevant information to the mediator so the mediator can better understand the dispute and help the parties resolve it. Confidentiality also protects the parties from unwanted disclosure of private or personal information outside of the mediation. If disclosures made during mediation were not protected by confidentiality, the parties would be unlikely to share information, which would undermine the mediation process. If sensitive information disclosed in confidence during mediation was repeated to an employer, family member, business partner, or rival firm, it could cause severe financial or emotional harm.
Confidential Inc., November, 1955, Public domain, via Wikimedia Commons
Of course, mediators are bound by professional conduct guidelines to keep all information shared during the mediation in confidence, and so are lawyers. But once parties sign a confidentiality agreement, they are also bound to maintain confidentiality during and after the mediation. This can provide comfort to those involved, providing assurance that the details of their dispute will not be repeated outside the mediation, especially if the mediation involves a sensitive or potentially embarrassing subject.
To help maintain confidentiality during the mediation process, before the mediation begins, each party is required to sign a confidentiality agreement acknowledging that they understand the importance of confidentiality and agreeing that they will keep all information disclosed in mediation confidential. Even after they’ve signed the agreement, the mediator will remind the parties that everything disclosed in mediation is confidential. “What happens in mediation stays in mediation,” is how I put it. Usually, the mediation will not proceed if all parties have not signed the confidentiality agreement and acknowledged that they understand that confidentiality applies to the mediation.
Confidentiality is also maintained by conducting mediation sessions in private rooms or offices, so that outsiders can’t overhear discussions between the parties, their attorneys, and the mediator. People who are not parties to the mediation are usually excluded from the session (including mediation sessions conducted remotely via Zoom or another virtual-meeting platform) to avoid inadvertent disclosure. Mediators may take notes during the mediation, but usually destroy them after the mediation is completed to reduce the risk of information accidentally being shared with a non-party. Likewise, recording of mediation sessions is almost never permitted, and in any case illicit recordings of mediation discussions would not be admissible as evidence in court.
Sometimes during mediation, a party will share information with the mediator that they don’t want the other party to know. The mediator is obligated to keep that information confidential and not share it with the other participants unless the disclosing party consents. It is up to each party to let the mediator know what can and cannot be shared, but it is good practice for the mediator to confirm whether a party wants any information discussed to remain confidential. A party who wants information to remain confidential needs to be clear with the mediator about what is and is not confidential to help avoid an inadvertent disclosure.
That said, not everything that is discussed in mediation is confidential. For example, any information that is not already confidential is not suddenly cloaked in secrecy because it is discussed in mediation. If the information has already been disclosed to the opposing party or third parties prior to the mediation, or is publicly available information, it is not confidential.
There are also several exceptions to confidentiality. In almost all jurisdictions, if a party discloses previously unreported abuse of a child or vulnerable adult, the mediator is required to report it to the appropriate authorities. In some jurisdictions, the mediator may also be required to report threats of serious injury or death or criminal activity. But in most cases, no confidential information disclosed in mediation can be disclosed outside of the mediation or used in court.
Finally, if the parties are able to resolve their dispute and reach an agreement, their agreement will be reduced to writing and signed by all parties. Although everything else that happened during the mediation may be confidential, a signed written agreement can be submitted to the court unless the parties agree that the agreement will also remain confidential. Also, if directed by the court or agreement of the parties, the mediator may be allowed or required to submit a report to the court confirming whether the parties participated in mediation in good faith.
A party that violates a confidentiality agreement or attempts to submit information obtained during a mediation as evidence in court may be sued for breach of contract and held liable for damages caused by the breach of confidentiality or even sanctioned by the court for violating confidentiality rules. Because of the possibility of being sued or sanctioned for violating a confidentiality agreement, it is important to take special care to not talk about anything disclosed during mediation with anyone who is not a party to the mediation.
To schedule a mediation in Washington or Hawai'i, contact Jeff Smoot at jeffsmootlaw@gmail.com or (206) 420-2466.
Copyright © 2023 by Jeffrey L. Smoot. All rights reserved.
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