How Does Confidentiality Factor Into Mediation?
Confidentiality in mediation proceedings is one of the hallmarks of the dispute resolution process. Privacy is often valuable to both individuals and businesses, and nobody likes to have their sensitive or embarrassing details revealed publicly. Mediation takes place in a closed room where representatives of both parties engage with each other through a neutral, third-party mediator. Let’s delve further into the topic of mediation and explore how confidentiality factors into the mediation process.
Steps to Ensure Mediation Confidentiality
The mediator will inform the involved parties of their responsibility to maintain confidentiality. The key steps that help ensure confidentiality include:
- All mediation sessions will occur behind closed doors.
- The mediators will not record the details of the deliberations.
- Outsiders may only observe the proceedings if both parties provide consent.
- Publicity is prohibited.
Importance of Confidentiality in Mediation
Confidentiality in mediation reduces the risk of any vital facts or emotional comments during the proceedings becoming public. This restraint allows more room for a realistic discussion as it eliminates any posturing advantage for both sides.
In general, any facts discussed during mediation are not permissible pieces of evidence in a court of law, especially if the matter goes to court. This aspect is often a part of the mediation agreement.
Negotiation cannot succeed unless the participants to the dispute receive assurances that they can freely communicate without the fear of hurting their chances in a potential lawsuit. Mediation confidentiality mitigates these concerns.
Businesses prefer mediation in place of litigation in many cases because it allows privacy, unlike the public nature of the court system. The benefits of confidentiality in mediation apply equally to individuals who may not want their highly personal or emotional details to be accessible to the general public.
Mediation Confidentiality Exceptions
The law can impose some limits to confidentiality or allow for exceptions. For instance, mediators are usually required to disclose to law enforcement authorities any allegations of violence or physical abuse. Similarly, they may have to disclose matters related to sensitive subjects, such as national security or public fraud.
In exceptional situations, the involved parties may have to provide an account of the mediation proceeding to the authorities or external constituents. Fundamentally, more parties in a mediation lessen the likelihood that 100-percent confidentiality will remain intact.
What Is Confidential?
In general, anything discussed during the mediation proceeding will be confidential. This privacy becomes even more essential regarding financial negotiations. Apart from the monetary figures and statements disclosed during mediation, any hard evidence or documents will also be confidential.
However, there could be exceptions to the use of evidence during mediation.
If the source of the evidence is independent, it may be permissible to use it later in court. Generally, restrictions prevent participants from mentioning mediation content in court at a later date. The mediator’s findings, recommendations, and statements, if any, are also considered confidential. Moreover, the mediator cannot testify in court.
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Ready to bring your case to a proven and trusted mediation expert? Call Shapiro Mediation today at (339) 298-7733 or contact us online to schedule a free consultation with one of our mediators at our Massachusetts or South Florida office.