In the United States, mediation proceedings are meant to be strictly private and confidential. Confidentiality is the cornerstone of mediation because it enables parties to discuss openly the elements of their case without consequence. Confidentiality of mediation proceedings have been assured by operation of law and by agreement. Specifically, most states have statutes mandating the confidentiality of mediation proceedings. Some states’ statutes are more expansive than others. For example, Indiana Code, §4-21.5-3.5-27 provides that mediations are confidential and privileged, and the confidentiality of the procedure cannot be waived by the parties. However, Nebraska Revised Statutes, §25-2914 allow parties to agree in writing to waive confidentiality.
Moreover, many states have legislation that recognises a qualified mediation privilege modelled after the Uniform Mediation Act (UMA). The UMA provides that mediation communication is not privileged if a party seeking discovery can show that ‘the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality, and that the mediation communication is sought or offered in a criminal proceeding . . . or in a proceeding to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation’ Unif. Med. Act §6(b). Additionally, some states have adopted the UMA with modifications, while other states have created their own mediation privileges that are either absolute or qualified. For example, Indiana’s Alternative Dispute Resolution Rule 2.11 provides for an absolute mediation privilege. On the other hand, the Central District of California has not extended its mediation privilege to documents that were going to be offered for a purpose other than to prove a claim or defence (Milhouse v Travelers Com Ins Co. 982 F.Supp.2d 1088, 1105 n. 10 (C.D. Cal. 2013)).
Federal courts have also implemented local rules to protect the confidentiality of mediation proceedings. The Alternative Dispute Resolution Act, section 652(d) states that ‘each district court shall, by local rule . . . , provide for the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential dispute resolution communications’. Federal courts with diversity jurisdiction (28 U.S.C. §1332) may disregard the local rules implemented by the federal courts, and instead may apply the state law statutes pursuant to Federal Rules of Evidence Rule 501. For example, in the unpublished decision of Pac Marine Ctr, Inc v Philadelphia Indem Ins Co, 2015 WL 1565362, Case No. 1:13-CV-00992-AWI (E.D. Cal. Apr. 8, 2015), the district court relied on California law to rule on mediation confidentiality. In addition to state statutes or court rules that expressly rule that mediation communications are confidential, pre-written rules and the parties’ own contractual mediation provisions can ensure the confidentiality of a mediation proceeding. For example, the Judicial Arbitration and Mediation Services adopted its Rule 11 to guarantee the confidentiality of mediation proceedings.
Accordingly, the confidentiality of mediation proceedings is not implied, in the absence of an express rule or agreement. Parties should expressly agree that the mediation proceeding is confidential, prior to the mediation, if they want to warrant the confidentiality of the mediation proceeding. Nevertheless, in certain circumstances courts may disregard confidentiality provisions and permit confidential information to be disclosed. For example, the US District Court for the Southern District of New York Rule 83.8(d) states that ‘Documents and information otherwise discoverable under the Federal Rules of Civil Procedure shall not be shielded from discovery merely because they are submitted or referred to in the mediation.’ Additionally, courts may allow confidential mediation communication if there is:
waiver; consent; finding that the process was not mediation; finding that the provider of evidence was not a mediator; finding that confidential information was not actually disclosed or that there was insufficient evidence to establish whether confidential information was disclosed; concluding the evidence was offered for a permissible purpose; or concluding the evidence was not material or its introduction constituted harmless error.
James R Coben, Peter N Thompson, ‘Disputing Irony: A Systematic Look at Litigation About Mediation’, 11 Harv. Negot. L. Rev. 43, 66-67 (2006).
The UMA also carved out exceptions to confidentially that include communications concerning ongoing criminal activity or plans to commission a crime, proving or disproving a claim of professional conduct against a mediator, plans to inflict bodily injury, and a waiver of the privilege by the parties (UMA §6(a)). While courts may allow confidential mediation communications in hearings, many jurisdictions have established rules sanctioning parties for breaching confidentiality. For example, the District Court of Appeals in Florida found that a trial court was proper in imposing sanctions on a plaintiff who knowingly and wilfully violated an agreement and pertinent statute and rule (Paranzino v Barnett Bank of S Fla, NA, 690 So. 2d 725 (Fla. Dist. Ct. App. 1997)).
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