An essential element of a successful mediation is confidentiality. Participants to a mediation must be able to rely on the confidentiality of the process if they are going to be candid with the mediator about their settlement positions, pressure points, litigation strategy and other sensitive issues. This principle is reflected in the Uniform Mediation Act, finalized in 2003 and adopted by 11 states to date, including Washington, Idaho, Utah, South Dakota, Nebraska, Iowa, Illinois, Ohio, New Jersey, Vermont and Hawaii. According to the Act, “[t]his frank exchange can be achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and adjudicatory processes.”

Most ethics guidelines for mediators and some state statutes require that anything said, any writing or any admission made during a mediation is to be kept confidential, and that would include the terms of the settlement. Standard V of the ABA Model Standards of Conduct for Mediators (Model Standards), adopted in 2005, directs that a mediator must “maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.” JAMS Mediators Ethics Guidelines recognize that “[i]t is crucial that the mediator and all parties have a clear understanding as to confidentiality before the mediation begins… A mediator should not disclose confidential information without permission of all parties or unless required by law, court rule or other legal authority.”

Originally published in Law.com on April 2, 2015.