EPISODE 12: What Happens in Mediation Stays in Mediation . . . Right?

A bedrock principle for mediation is its confidentiality. Arguments made at mediation are typically not admissible in court. Nationally renowned mediator, Jeff Kichaven, has been virtually touring the country presenting a provocative theme: your mediation might not be confidential. Jeff explains that whether a mediation is confidential is determined by the court hearing an attack on confidentiality and, if it is a different forum from where the mediation took place, which Restatement that court adopts could impact the outcome. Jeff discusses various cases in which confidentiality was not upheld, even where the parties signed a confidentiality agreement. Moreover, in the days of Zoom mediation who even knows where the mediation took place. Bottom-line for Jeff is that he leaves it to the attorneys to discuss confidentiality and does not include it in his agreements because he does not want to over-promise anything. Steve suggests that mediators carefully analyze their ethical obligations noting that in Texas he has an affirmative duty as a credentialed mediator to discuss the basic principles of mediation, including confidentiality, with the parties. Both suggest that lawyers fully consider the pros and cons of signing any confidentiality agreement and that in the vast majority of cases confidentiality will not be an issue. So, tune in to learn whether mediation is really like Vegas and what happens there, stays there.