Caldwell & Kearns, P.C.
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Mediation cannot be used as a means to shield evidence from litigation process

Because of the confidentiality aspect of mediation, it is a great opportunity for parties to lay out their positions and negotiate with one another in a relatively non-threatening environment. We say relatively because, while confidentiality is an important aspect of mediation, it is not an absolute privilege. Under Pennsylvania law, communications and documents utilized in the mediation process generally cannot later be used in court if the mediation breaks down. This gives parties the opportunity to be open and honest with one another in sharing information so that they are better able to reach a mutually satisfactory resolution.

That being said, there are important exceptions to the confidentiality rule. One of them is that documents used in connection with mediation are not privileged if they exist or existed independently of the mediation. A good example would be business records, since they are not produced for the purpose of mediation.

The idea behind the exception is that parties to mediation cannot shield important evidence from the adversarial process simply because it was introduced in mediation. Evidence which is produced specifically for mediation would be covered by the privilege, but evidence which exists independently of the mediation is not privileged. So there are definitely limitations.

We share this bit of information to point out that, while mediation is indeed a good environment in which parties can work toward an effective solution while avoiding the costs of litigation, it isn’t possible to shield any and every bit of evidence utilized in mediation. Experienced attorneys are aware of this fact and are able to advise their clients appropriately in order to avoid legal problems in the event the mediation breaks down and they turn to litigation.

Source: The Legal Intelligence, “Blocking the Use of Meditation Documents in Litigation,” Charles F. Forer, October 14, 2014. 

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Caldwell & Kearns, P.C.
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Harrisburg, PA 17110-1533

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