Abstract: “Confidentiality in Mediation”

The promise of confidentiality is a major selling point in maintaining privacy in mediation, yet little attention has been paid to the hard won right of privacy as the underpinning of confidentiality. Understanding constitutional Amendments I, IV, V, and XIV as well as Tort Law privacy as the basis for offering confidentiality, would allow mediators and disputants to recognize both the value of and limitations to confidentiality in mediation.

In explaining confidentiality mediators are “state actors,” giving legal information that is necessary to fulfill the mandate of self-determination which requires informed consent of the parties. In deciding whether to maintain or waive confidentiality, parties are operating within the legal system in which litigants are entitled to hear “every person’s evidence.” Rules of evidence may on the one hand protect confidentiality in mediation as they do for some aspects of settlement conferences, and on the other allow courts to overrule confidentiality if the necessity of hearing the evidence outweighs the parties’ preference in maintaining it. An overview of the confidentiality statutes and rules of the fifty states and the District of Columbia demonstrates that mediation is an option within the law (still a source of confusion for many mediators and the public), and shows the range of statutes and court rules governing confidentiality that guide the court’s decision whether or not to override it.

In addition to laws and rules defining confidentiality in the states, the USA PATRIOT Act Section 215 impacts all mediation, allowing the federal government to confiscate any records or documents held by the mediator and precluding a mediator from informing the parties if this has happened. Given the confusing and conflicting parameters surrounding confidentiality, it is important for mediation training and course work to include a more complex approach to confidentiality, specifically addressing state laws and rules in each locality. Recognizing confidentiality as both an opportunity to exercise the right to privacy and understanding the potential threats to it, would assist mediators in adequately informing parties who are faced with the decision to maintain or waive it.