Shhh, It’s a Secret: Confidentiality in Mediation
Original Credit: @tinaflour (edited)
Mediation is a scenario where two or more opposing parties come together in an effort to resolve a dispute, whether it is to avoid litigation or just to move forward. In order to get the parties to speak openly enough to negotiate they have to feel protected in doing so, should mediation not ultimately work out. Otherwise, they will hold firm to their original position and mediation will go nowhere. To foster that, there is generally a promise of confidentiality and inadmissibility of information shared and statements made during mediation.
What is said from one party to another and to the mediator is confidential. No one including the mediator can be called as a witness to testify about anything shared in the course of mediation; Nobody can run around telling everybody about the name of everyone involved and what was said or discovered in mediation. In addition, documents prepared in anticipation of mediation - typically for negotiation purposes - are also confidential and inadmissible. You, or you and your attorney, have to make decisions about what to share and not share at mediation. Bottom line: If you’re making certain claims, you’re going to have to articulate that with evidence at some point if you want to get what you’re asking for.
If you do reach an agreement as an individual against a business of some sort, it’s also very likely there will be a non-disclosure provision preventing you from disparaging them in the future. No, they will almost certainly not remove this and it will be a condition of settlement. I once had a mediation where property management entered after a tenant had vacated, but before the lease was up, threw out all the packed belongings and changed the locks. (Huge mistake obviously.) They offered the tenant more than they actually would be entitled to in the court they filed with, but the tenant refused to sign based on the non-disclosure and lost the extra money in a later judgment.
Moral of the story: Everyone is entitled to refuse to sign an agreement for any reason, but it may be unwise for most to walk away from an otherwise satisfactory agreement based on principle like this.
“It goes back to an old saying in the legal profession to be cautious about ‘leaving money on the table’ in an attempt to get a better result, as it can backfire at times. ”
When the parties speak privately with the mediator, they are able to say things that don't leave the room, while other things that are able to be conveyed to the other party in a way that doesn’t give too much info, but is helpful to the mediation. It can be a delicate balance for the mediator, but most are generally aware of the types of information a party wouldn’t want to convey without having a very specific conversation.
This is commonly any information that could hurt that party’s case, and private information not necessarily related to the issues (a hardship perhaps) that shows a more detailed picture of the party’s position. However, it never hurts to be specific with the mediator about what you do and don’t want them to reveal to the other party. The mediator might push back on certain things if they feel it could help the mediation process, but should discuss with the party first. Don’t be afraid to be open with the mediator and listen to their thoughts on how to go about things, this is their profession after all. The mediator’s only interest is to help you and the other parties get past the issues in a way you can all live with.
It’s still kind of a confusing topic for those who don’t deal with it often. It can seem limiting to your interests to consent to the confidentiality rules, but they are there to help you and protect you. They help you by being designed in a way that allow people to speak and act a little more freely in the interests of making some compromises and discussing options for agreement. They also protect you later on if mediation does not fully resolve the issues you’re facing.