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How confidential is mediation?

In our last post, we began speaking about the issue of confidentiality in mediation, specifically the purpose of confidentiality and exceptions to the rule under state law. At the federal level, mediation confidentiality is more tenuous because it is not recognized by all courts. The Third Circuit Court of Appeals has not conclusively recognized the existence of federal privilege for mediation communications, but federal courts in Pennsylvania have recognized such a privilege based on the application the Federal Rule of Evidence 501.

So, although most federal courts do generally acknowledge the confidentiality of mediation communications, the issue has still to be dealt with in a significant way in the federal courts of appeal. All this having been said, whether or not mediation is treated as confidential is not always certain. This is partially because, as some commentators have pointed out, courts do not always recognize confidentiality even when it should theoretically apply.

The frequency with which mediations are dealt with in court has been shown to have increased in recent years, though mainly at the federal level. In many cases, the issue of mediation confidentiality is ignored altogether. The reasons for this aren’t entirely clear, but the problem is especially noticeable in cases involving class action settlements. It is quite common in such cases for courts to admit evidence of the fairness of these settlements.

Confidentiality, as we’ve mentioned, is an important aspect of the mediation process and it is important for parties to understand that communications throughout the mediation process may not be used later on in court. In practice, though, mediation is not always confidential, and parties need to understand the ramifications of this possibility for their case. Consulting with an knowledgeable attorney can provide needed guidance.

Source: Pennsylvania Bar Association, “Mediation: Confidentiality and Privilege,” Judy Shopp, July 2010. 

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