WHAT IS THE “MEDIATION PRIVILEGE”?

Much has been discussed over the years as to the importance of maintaining the concept of confidentiality as part of the mediation process. Any concern relating to lack of confidentiality during the process would risk the incentive of openness and honesty during settlement discussions. In that the concept of confidentiality is crucial for a successful mediation, it is helpful to dig deeper toward clarifying specific protections that should be included within a mediation agreement. Guiding that clarity are the rules provided within the Uniform Mediation Act, which has been incorporated by a dozen states throughout the Country. The UMA addresses some clear points as to what confidentiality readily means as to the parties, non-parties, lawyers and the mediator itself. The guideposts for what could be described as a “Mediation Privilege” are outlined under Sections 4, 5 and 6 of the UMA and are worth closer consideration and review. 

SECTION 4. PRIVILEGE AGAINST DISCLOSURE; ADMISSIBILITY; DISCOVERY.

?(a) Except as otherwise provided in Section 6, a mediation communication is privileged as provided in subsection (b) and is not subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5.

(b) In a proceeding, the following privileges apply:

(1) A mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.

(2) A mediator may refuse to disclose a mediation communication and may prevent any other person from disclosing a mediation communication of the mediator.

(3) A nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.

(c) Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.

SECTION 5. WAIVER AND PRECLUSION OF PRIVILEGE.

(a) A privilege under Section 4 may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:

(1) in the case of the privilege of a mediator, it is expressly waived by the mediator; and

(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant.

(b) A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege under Section 4, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure.

(c) A person that intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege under Section 4.

SECTION 6. EXCEPTIONS TO PRIVILEGE.

(a) There is no privilege under Section 4 for a mediation communication that is:

(1) in an agreement evidenced by a record signed by all parties to the agreement;

(2) available to the public under open records laws or made during a session of a mediation which is open, or is required by law to be open, to the public;

(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;

(5) sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediator;

(6) except as otherwise provided in subsection (c), sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation; or

(7) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party…

Applying the tenets of the UMA, information shared during the course of a mediation, unless waived by all parties to the mediation, otherwise should be considered privileged and confidential, inadmissible for use at trial and otherwise not subject to discovery. The discussions that occur in mediation should be considered akin to the attorney-client privilege where the rights of confidentiality are strongly preserved and protected.

For those states that have not accepted the UMA, it is likely that there is a statutory alternative or at least some guidance that can be found under common law. As a practice pointer, it may be helpful for mediation agreements to reference the applicable law as to confidentiality for the jurisdiction where the mediation is to occur or at least to outline these privileges and their exceptions within the mediation agreement itself.

For over thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at www.epicresolution.com