Any lawyer who has taken a case to mediation knows – at least in some vague, general way – that settlement discussions occurring during the mediation enjoy some level of confidentiality protection. Mediators themselves, of course, may have some greater understanding of what is and is not confidential during the mediation process, but even a seasoned mediator may not know all of the ins and outs of the sometimes helter skelter confidentiality case law. Even more likely is that neither the lawyers nor the mediator fully appreciates the nuances of the confidentiality rules in each of the jurisdictions in which a dispute potentially could arise.
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