The mediation privilege.

• Author: Cohen, Marcia S.

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Black's Law Dictionary defines privileged communications as "those statements made by certain +persons within a protected relationship ... which the law protects from forced disclosure on the witness stand." (1) The term "mediation privilege" refers to the protection from disclosure of confidential communications in mediation. (2) Though many legal scholars have argued that enactment of an evidentiary privilege against disclosure of information learned during a mediation is unnecessary, as confidentiality of such information is protected by contract and by state or federal evidentiary rules, others have reasoned that these methods are insufficient to further the goals of mediated dispute resolution. As to contractual promises of confidentiality, it has been noted that confidentiality agreements entered into pursuant to mediation will not prevent a nonparty from seeking disclosure of information. (3) As to evidentiary rules, the limited scope of uncertain application of Rule 408, which excludes evidence related to compromise negotiations, leaves mediation communications vulnerable because it does not require exclusion of evidence otherwise discoverable, nor prevent a participant from voluntarily disclosing information. (4)

The Benefits of Mediation Privilege

In her article on mediation privilege, (5) Anne M. Burr delineates and explains four main advantages of a mediation privilege: candor, fairness, privacy, and neutrality. A privilege against disclosure of confidential mediation communications allows the parties to speak freely, admitting facts they would not concede without the assurance of confidentiality. Later use of information learned at a mediation would be unfair to a party who disclosed such information trusting that it would not be used against him or her if mediation failed to settle the dispute. The guarantee of privacy concerning sensitive information often motivates parties to resolve their disagreements through mediation. And if there is any chance that a mediator's neutrality can be compromised by compelling his or her testimony regarding matters disclosed during mediation, the parties would feel less comfortable in confiding delicate matters to him or her in caucus.

The Uniform Mediation Act

That the benefits of enacting a privilege against disclosure of confidential communications in mediation outweigh any detriments is attested to by the creation of the Uniform Mediation Act, (6) a centerpiece of which is its inclusion of a mediation privilege.

Section 4(a) provides that "a mediation communication is privileged ... and is not subject of discovery or admissible in evidence in a proceeding unless waived or precluded as provided by Section 5." Subsection (b) describes the scope of the privilege. A party to a mediation may refuse to disclose, and may prevent any other person from disclosing a mediation communication of any participant. A mediator may refuse to disclose, and may prevent any other person from disclosing a mediation communication of the mediator. A nonparty participant may refuse to disclose, and may prevent any other person from disclosing a mediation communication of the nonparty participant. Subsection (c) contains an exception for "evidence or information that is otherwise admissible or subject to discovery." In the Reporter's Notes, the drafters explain that "it is the communication that is made in a mediation that is protected by the privilege, not the underlying evidence giving rise to the communication."

Section 5 of the Uniform Mediation Act sets forth conditions for the waiver or preclusion of the privilege. Subsection (a) provides that the privilege may be waived in a record or orally during a proceeding if it is expressly waived by all parties. In the case of a mediator's privilege, it is expressly waived by the mediator; and in the case of a nonparty's privilege, it is expressly waived by the nonparty participant. Subsection (c) precludes a person who uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime, from asserting the privilege. Significant is the requirement that all parties must agree to the waiver before a party, mediator, or nonparty participant can testify regarding the mediation communication.

Exceptions to the privilege are contained in 6. An agreement evidenced by a record signed by all parties to the agreement may be disclosed in a subsequent court proceeding convened to determine, for example, whether the terms of the settlement agreement had been breached. There is no privilege for a communication that is available to the public, either pursuant to an open records law or made during a mediation required to be open to the public. No privilege exists for a threat to do bodily injury, to commit a crime of violence, or for the purpose of other criminal activity. A complaint of professional misconduct or malpractice against a mediator, a party, a nonparty participant, or a representative of a party is not privileged. Other exceptions are created for evidence of abuse, neglect, abandonment or exploitation when a child or adult...