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How is mediation confidential?

One of the important benefits of the mediation process, as readers may know, is that it is confidential. In Pennsylvania, this means that communications between parties in mediation and documents that are created for the mediation process may not be used later on in litigation if the mediation fails.

Under state statute, though, there are several exceptions to this rule: documents used in mediation which exist independently from the mediation; litigation which seeks to enforce the mediation agreement; criminal matters related to certain communications and conduct during the mediation; and fraudulent statements relevant to litigation which seeks to enforce or set aside the agreement.

Confidentiality is an important aspect of the mediation process primarily because it gives parties the confidence that they are able to speak openly and without fear that their communications may later be used against them in court. Without that confidence, mediation would be much less effective and the probability that parties would ultimately resort to litigation would thereby be increased. In addition to confidentiality under state statute, mediation communications may also be protected by confidentiality under local rules of court, though in a different way than they are protected by statute.

When it comes to federal court, the confidentiality of mediation communications is a little more up in the air. Where recognized, the issue of mediation confidentiality has been dealt with under the auspices of Federal Rule of Evidence 501, but that recognition is not universal.

In our next post, we’ll pick up on this point and continue our discussion of confidentiality in mediation.

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

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