Confidentiality in Mediation
What It Means and Why It Matters
Confidentiality is one of the defining features of mediation and one of its greatest strengths. Unlike courtroom proceedings, which are public, mediation takes place behind closed doors. But what does confidentiality really mean in practice, and why is it so important to the success of the process? In this blog, we’ll review the concept and explore why it matters to both clients and counsel.
What Confidentiality Means in Mediation
Confidentiality in mediation generally means that what is said or shared during the mediation process cannot be disclosed or used outside of it. This applies to settlement discussions, statements made by parties or counsel, and even documents shared for the purpose of negotiation. In most jurisdictions, this confidentiality is protected by court rules, statutes, or agreements signed before mediation begins.
The Mediator’s Role in Maintaining Confidentiality
Mediators play a key role in upholding confidentiality. They hold private sessions (called caucuses) with each party and do not share information between rooms without permission. This allows parties to speak openly, explore options, and share concerns without fear that their words will be used against them.
Why Confidentiality Matters
Confidentiality is essential to creating a safe space where parties feel comfortable being candid. It encourages open dialogue, promotes trust in the process, and reduces posturing. When people know that their statements and offers won’t become part of a public record or future litigation, they’re more willing to be honest, vulnerable, and creative in pursuit of settlement.
Limits and Exceptions
While confidentiality is broad, it’s not absolute. There are some exceptions. For instance, if a party threatens violence, reveals criminal activity, or if the law requires disclosure, the mediator may be required to disclose the information (Rule 11 (3) of the Alabama Civil Court Mediation Rules). It’s important to understand the specific rules that apply in your jurisdiction and to clarify expectations at the outset of mediation.
Confidentiality Agreements
Some mediations begin with all participants signing a confidentiality agreement. This agreement reinforces the rules and ensures that everyone, including lawyers, clients, insurers, and others, is on the same page. It may also outline specific provisions regarding the use of documents or the confidentiality of the final settlement terms.
The Bottom Line
Confidentiality isn’t just a technical rule — it’s the foundation that makes mediation work. It allows for honesty, creativity, and compromise. Whether you’re a lawyer preparing your client or a party seeking resolution, understanding and honoring confidentiality is key to getting the most out of the mediation process.