While it is no surprise that most lawsuits settle without ever going to trial, many non-lawyers are surprised by how effective formal mediation can be at resolving legal disputes. Alternative dispute resolution has emerged over the past few decades as a successful tool to resolve legal disputes, often more quickly than going through a trial. Unlike a judge's order, or jury's verdict, settlement agreements can also provide for forms of relief that can't be awarded by a court. Among the most requested non-court awardable relief is a simple apology.
The goal of any mediation session is to reach a settlement. One of the most effective ways to reach a settlement during mediation is to allow parties to interact, with help from their lawyers, to try to find middle ground, and allowing those interactions to be off the record, so to speak. Requiring mediation to be confidential allows the parties to more meaningfully interact and explore potential resolutions that might be satisfactory to all involved without fear that settlement offers or proposal will be used against them. Mediation confidentiality is designed to facilitate and encourage the exchange of settlement offers. So how does it work in practice?
What Is Actually Considered Confidential at Mediation?
Typically, anything that gets said at mediation will be considered confidential. This is particularly important when it comes to monetary negotiations. However, in addition to the numbers exchanged, and statements made at mediation, any documents submitted, or evidence relied upon, will also be confidential. But that confidentiality isn't absolute: the other side can still use evidence disclosed at mediation, as long as there is an independent source for that evidence from somewhere other than the mediation. Also, parties are strictly prohibited from bringing up the content of mediation negotiations later in court.
If a party admits that they did something bad during mediation negotiations, the other side generally cannot use that admission until it comes out during the discovery (fact-finding) process of a case. Conversely, just because evidence gets used at mediation, does not mean it becomes confidential and protected from use at trial. Rather, it is the fact that certain evidence was used at mediation, or sourced from a mediation, that raises confidentiality issues.
Lastly, the actual mediator's statements, findings, and recommendations, if any, will also be considered confidential. Mediators cannot testify in the court case, and are generally barred from speaking with the judge, except for reporting whether a case settled or not.
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