By Kent B. Scott and Cody W. Wilson
For mediation to work the way it is supposed to, the parties must be willing to speak candidly with the mediator, and they will not do this unless they know that the mediation is private and what they say and do in mediation will be kept confidential. Given the need for confidentiality, is there a legal basis for it?
There is no federal law protecting mediation communications, although there are protections for settlement discussions that could apply to mediation. However, most states have laws protecting the confidentiality of mediation to one degree or another. The importance of confidentiality to mediation was recognized by the National Conference of Commissioners on Uniform State Laws (NCCUSL), which created the Uniform Mediation Act (UMA) and, with the support of the American Bar Association, proposed its adoption by the states. Under the UMA (which a few states have already enacted and some others are considering), unless an exception in the UMA applies, a mediation communication (i.e., statements made and information exchanged with the mediator) in a mediation are privileged and not subject to discovery or admissible in evidence in a proceeding unless waived. There are several exceptions to the confidentiality privilege. However, courts often require a high threshold of proof to overcome the confidentiality protection afforded by mediation.
Confidentiality also applies in court-annexed mediation. The judge who is assigned to the case may not be given any information about what took place during the mediation process. In that situation, the referring court is entitled to learn only three things about the mediation proceedings:
- whether any party failed to participate in good faith;
- the outcome of the mediation; and
- if the dispute settled in whole or in part, the terms of the settlement (which is usually provided to the court in the form of a summary agreement).
Absent a statute or a public policy requirement, courts will not go beyond the face of the mediation settlement agreement itself to determine the parties’ intent.
It should be noted that the UMA does not provide for confidentiality outside of judicial, arbitral or other formal proceedings. Thus, it would not prevent a mediating party from making disclosures about the mediation to the press. To obtain that level of confidentiality, the parties should enter into a private confidentiality agreement that contains enforcement mechanisms.
If mediation is conducted under the rules of a particular provider, it may have a provision on confidentiality. An example is the American Arbitration Association Rule M-9 (privacy) in the AAA commercial mediation rules says that mediation is a private proceeding. Rule M-10 (confidentiality) requires the mediator to maintain the confidentiality of information disclosed by the parties and all documents the mediator received in connection with the mediation. This includes not testifying in any proceeding about the mediation. The rule also calls for the parties to maintain the confidentiality of mediation. In furtherance of confidentiality, Rule M-11 does not allow for a stenographic record of mediation proceedings.
In addition to the above, the mediator may have a confidentiality provision in his or her retainer agreement. So there are confidentiality protections for mediation. As a result, what happens in mediation tends to stay there.
Part IV of this series will discuss the mediation settlement. Stay tuned.
[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]
Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.
Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at email@example.com and firstname.lastname@example.org.