Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?

• Publication year: 2007
• Pages: 13
• Citation: Vol. 20 No. 4 Pg. 13

Utah Bar Journal Volume 20.

Vol. 20, No. 4, 13. Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?

Utah Bar Journal
Vol. 20, No. 4
May/June 2007

Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?

Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?

by Karin S. Hobbs

Editor's note: On May 2, 2007 the Utah Supreme Court will hear argument on an interlocutory appeal involving a trial court's order requiring an attorney to testify regarding mediation discussions

After hours of mediation, the parties have reached a "deal" on the principal issues. The parties want closure. Attorneys begin preparing the written agreement to ensure the deal is clear, complete, final and enforceable Mediation discussions continue. Emotions run high as the parties work through the final issues. If the "deal" is not written and signed, is there an agreement? Are the discussions confidential? How do attorneys ensure confidentiality of mediation? How do attorneys create an enforceable settlement agreement and avoid court action?

Why is confidentiality so important? Confidentiality is a critical element of successful mediation. In order for the mediator, the attorneys and the clients to understand the central issues, the motivations, the pressure points and the risks of litigation, the participants must be assured the discussions cannot and will not be disclosed to others so they can talk openly. Frequently, some of the motivating forces behind lawsuits are legally irrelevant and yet exceptionally important to understanding the conflict and facilitating resolution. Frequently, clients disclose private events, perceptions or issues in mediation they would not want disclosed to anyone. Explaining their concerns and fears is often critically important to them in order to resolve the conflict. If discussions with the mediator are not confidential and privileged, the mediation process, the mediator's role and the potential for resolution are significantly diminished.

In preparing for mediation, attorneys explain to clients that mediation is confidential. "These are settlement discussions and cannot be disclosed in court," attorneys tell their clients. "You can feel free to talk to the mediator. She won't disclose it to the other side if you tell her the information is confidential." In the opening session of the mediation conference, the mediator explains that the discussions are confidential and privileged. All participants sign an Agreement to Mediate, stating they understand the mediation process, the mediator's role and the confidentiality of the discussions. Mediation proceeds based on an understanding that the mediation discussions are confidential.

Despite mediation confidentiality, courts are increasingly asked to enforce settlement agreements reached in mediation, jeopardizing the confidentiality of mediation discussions.1 Confidentiality and privilege, two different yet intertwined concepts, are often used interchangeably. Confidentiality means the mediation communications are not disclosed. The mediation privilege is a rule providing that the confidential communications are not admissible in court. Utah recently enacted the Uniform Mediation Act, articulating guidelines for mediation privilege and mediation confidentiality. Attorneys can take steps to plan for and create enforceable settlement agreements to ensure that the process remains confidential and privileged.

The Uniform Mediation Act

Mediation Communications

On May 1, 2006, Utah became the eighth jurisdiction to adopt the Uniform Mediation Act (UMA).2 The UMA defines mediation communication as "conduct or a statement, whether oral, in a record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator." Utah Code Ann. § 78-31c-102(2) (2006). Thus, discussions with a mediator before, during or as a continuation of the mediation discussions are both confidential and privileged under the UMA. When the mediator meets with the attorney and client before mediation or in a follow-up meeting, the protections of confidentiality and privilege continue to apply.

Mediation Confidentiality

1. Prior to the UMA

Even prior to the creation of the UMA, courts throughout the country recognized mediation confidentiality as essential to effective mediation because it allows a candid and informal exchange of information.3 "The process works best when parties speak with complete candor, acknowledge weaknesses and seek common ground, without fear that, if a settlement is not achieved, their words will later be used against them in the more traditionally adversarial litigation process."4 Courts agree that "[w]hat is said and done during the mediation process will remain confidential, unless there is an express waiver by all...