Caldwell & Kearns, P.C.
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Looking at the statutory exceptions to mediation privilege in Pennsylvania

Previously, we began looking at the topic of confidentiality and privilege in the context of mediation. As we noted, the general rule is that all mediation communications are both confidential between the parties involved and privileged, meaning that their disclosure may not be compelled in litigation or other processes.

Under Pennsylvania law, there are certain exceptions to this rule, and it is important for those entering into the mediation process to be aware of these exceptions and act accordingly. One exception is when a party to the mediation seeks disclosure of a settlement agreement for the purpose of enforcing that agreement in court. In order for a court to enforce the agreement, the terms would have to be disclosed. This exception does not apply, though, when the settlement document states that it isn’t intended to be legally binding. 

Similarly, privilege does not exist when a party to the mediation is pursuing an action to enforce or set aside a mediated agreement reached on the basis of fraudulent communications. In such cases, communications are not privileged if they are relevant to the issue of fraud. Determining whether there is a sufficient pleading to set aside privilege can be an important issue in these cases.

Another exception to privilege is when the communication or conduct is relevant to a criminal case. This would apply to conduct or communications involving threats of bodily injury, felony damage to real or personal property, and conduct within a mediation session which actually results in bodily injury. Finally, privilege does not apply to mediation communications when the content of the communication exists independent of the mediation proceeding.

More than providing guidance for how to act in mediation, these rules protect parties who need to have access to mediation communications to protect their rights after the mediation. An experienced mediator, to be sure, will ensure that parties not only understand these rules, but that the mediation goes smoothly enough that the likelihood of future disputes is minimized.

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