CFR Mediation

Confidentiality in Mediation

One of the benefits of mediation is that it a private form of resolution – and the proceedings are confidential. Unlike litigation – “going through attorneys” – participants and mediators agree to the terms of confidentiality prior to engaging in mediation. This is a fundamental aspect to mediation, as it allows participants to full engage in the process without worry that their words will be used against them.

As a point of contrast is the Miranda Warning given when the police interrogate a person. Suspects/witnesses are given a warning to proceed with caution – as their “words my be used against them in a court of law”. In other words full disclosure, as it relates to an issue, may not be in a person’s best interest.

The confidentiality rules that govern mediation support the opposite. Participants agree that their words – their disclosures – cannot be used against them – in a court of law or otherwise outside of the mediation. The process and personal disclosures are private.

The concept of mediation confidentiality has recently gotten a lot of media attention from Carrie Prejean’s recent TV appearances on The View and Larry King Live.

On Larry King Live perhaps the most talked about appearance, Carrie Prejean (albeit already reluctant to discuss the previous topic) responded to Larry King’s question specifically referencing the mediation she participated in: “Did you get a settlement?”, by stating “That’s completely confidential. There was a confidential mediation…” Shortly thereafter she tried to leave the interview.

Although entertaining, these exchanges are misleading.

• Yes, things discussed in mediation are confidential.
• Yes, it is possible that the terms of the settlement may be confidential if so agreed upon during the mediation.
• No, finding resolution to a conflict in mediation not confidential. Asserting that a settlement was reached simply speaks to the value of mediation and does not conflict with the confidentiality terms.

I do not envy Prejean. It appears that she is simply trying to promote a book and comply with the terms of her settlement. Perhaps it would be helpful if someone gave her a pat response to the inevitable question, “was mediation successful?”, in whatever permutation it comes.

Admitting to settlement simply means agreeing the issue at dispute has been resolved – it admits nothing else. If the both sides have agreed that the terms of the settlement are confidential, then likely the next question can be answered by saying, “The terms of the settlement are confidential, but all sides were able to on the resolution or settlement – and now there is no longer a dispute.”

Regardless of Prejean’s portrayal, the confidentiality rules for mediation are constant – whether for a beauty pagent, divorce, business dispute, or family conflict. The process is private and participants can determine what future protections they need to add as part of the process.

Posted: November 24th, 2009 under Family Law, Mediation in the News, Uncategorized, mediation.