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Confidentiality in mediation and arbitration

We’ve been looking in recent posts at some of differences between arbitration and mediation. Here, we wanted to look at the issues of confidentiality and enforcement in both arbitration and mediation. First of all, confidentiality is an important aspect of mediation.

Under state law, all mediation communications and documents are privileged, and disclosure may not be required in litigation or any other process. Neither may they be admissible as evidence in any action or proceeding. There are certain exceptions to mediation privilege. Settlement documents—unless they state that they are not legally binding—may be introduced in an action to enforce the agreement. 

Also, certain types of communications or conduct may be introduced in a criminal proceeding, such as threats of bodily injury, threats of felony damage to real or personal property, and conduct during a mediation session which directly causes bodily injury. Fraudulent communications which are relevant to an action to enforce or strike down a mediation agreement are also not privileged. Finally, documents which exist independently of the mediation are also not privileged.

Confidentiality is an important issue in mediation because it gives parties the confidence to discuss matters that need to be discussed to reach a mutually acceptable agreement. In arbitration, confidentiality isn’t necessarily part of the process, but it may be. Ordinarily, arbitration decisions are filed with the court, but there are some types of cases which must be privately arbitrated. In such cases, the result is kept confidential. Next time, we’ll take a look at the issue of enforceability.

Source: Pennsylvania Bar Association, “Arbitration and Mediation,” Accessed June 16, 2016. 

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