Q: I represent a party proceeding to Mediation, and received from the Administrator an Agreement for Mediation that contains the following language. Why is this focus on confidentiality being emphasized with such particularity?
There are two areas of focus in reviewing confidentiality in Mediation; Process, and Support of Process. The successful process of mediation requires that the parties are assured of a safe, neutral and confidential forum to air their differences, perspectives and interests, in the attempt to explore common ground. According to many authorities the Mediator must work to establish a relationship which encourages open dialogue between the participants. Trust that any disclosure made to the Mediator will only be shared with other parties with permission, is fundamental in many mediations. The following language, excerpted from the Agreement to Mediate essentially tracks Pennsylvania Statute 42 Pa.C.S.A. § 5949 Confidential mediation communications and documents and local federal Rules USDC Middle District of Pa. LR 16.8.6 The Mediation Session and Confidentiality of Mediation Communications.
All discussions, representations, and statements made during mediation will be privileged as settlement negotiations. The parties agree that they will not attempt to discover or use as evidence in any judicial, administrative or arbitration action or proceeding anything related to the mediation, including any communications or the thoughts, impressions or notes of the mediator.
No document produced in mediation which is not otherwise discoverable will be admissible by any of the parties in any action or proceeding, including, but not limited to, a judicial, administrative or arbitration action or proceeding, except as provided under law.
The parties will not subpoena the mediator, or any records or documents of the mediator in any legal proceedings of any kind. If so called or subpoenaed, the mediator may refuse to testify or produce the requested documents. Should any party attempt to compel such testimony or production, such party shall be liable for, and shall indemnify the mediator against any liabilities, costs or expenses, including reasonable attorneys’ fees, which the mediator may incur in resisting such compulsion.
The mediator will not discuss the mediation process or disclose any communications made during the mediation, except as authorized by the parties, or as required by law or other applicable professional codes.
With this statutory and Rule protection, it is therefore anticipated that the parties can proceed with confidence to explore the options provided through Mediation. As with all hard and fast rules, however, you should be aware that from time to time there is litigation involving the attempt to compel disclosure or testimony by mediators. If you anticipate such a contentious situation, it would be advisable to review the current status of case law in your jurisdiction prior to proceeding to the mediation. If you need assistance in defining the issues, feel free to contact the CCBA ADR Committee through either Becky Morgenthal, or David Fitzsimons, Committee Chair.