Are Mediations Confidential?
When two or more parties enter into mediation, they are under the assumption that what happens and what is said during is confidential. Is it really, though? Can you be sure that the mediator will refrain from discussing the case with someone not involved? What about the other party? Will they refrain from releasing details about mediation? Let’s take a more in-depth look into whether or not mediation is confidential.
Massachusetts Court Rules Mediation is Confidential
In 2016, a Massachusetts court ruled that what is stated in mediation is confidential and cannot be used in a lawsuit that alleges fraud or other misconduct. The ruling came from the Massachusetts Appeals Court regarding the case of ZVI Construction Co. v. Levy, et al., 90 Mass. App. Ct. 412 (2016). The claims made by the contractor in the case were reportedly made based on statements made in mediation and other mediation discussions by the other party’s lawyer. The lawyer for the other party filed a motion based on the confidentiality clause in the parties’ mediation agreement.
Confidentiality Is Vital to a Successful Mediation
For mediation to be a success, confidentiality is a must from both parties and the mediator. The participants of mediation need to rely on the discussion being kept confidential so they can openly discuss the situation that led them here. Being candid with the mediator about the pressure points of the case will only happen if both parties know that mediation will be kept confidential.
Private Discussions With Mediator Are Also Confidential
It’s important to understand that any private discussions you have with the mediator without the other party present, can also be held in confidence if you make it known you are speaking confidentially. This means that you can openly talk to the mediator about your concerns without worrying the other party will hear about it.
Exceptions to Mediation Confidentiality
There are exceptions to the rule when it comes to mediation confidentiality. These exceptions include the following:
- If both parties agree to waive confidentiality and sign a document saying as much, then what is discussed in mediation can be released and used in court.
- The mental competence of a party could be questioned regarding a settlement that was obtained during mediation.
- The parties are permitted to report to a court that non-communicative conduct occurred in bad faith.
- If one or both parties fail to object to any evidence presented in mediation, this evidence can then be admissible in court.
- Mediators are permitted to testify in court about actions or statements made by either party that could be considered a crime.
Ready to Mediate Your Dispute? Contact Shapiro Mediation
If you are ready to resolve a dispute using mediation, it is best to speak with an experienced mediator who can help guide you towards a successful resolution. The team from Shapiro Mediation has years of experience mediating cases for clients in various industries. Call our office at (339) 298-7733 to schedule an appointment today.