Saturday, September 23, 2006

Confidentiality: How Private is Mediation?

One of the reasons parties choose to mediate their disputes is the privacy afforded by the mediation process. So how private is mediation? In California, mediation confidentiality is nearly absolute.

In a contested divorce case, feuding spouses spend thousands of dollars to have every aspect of their private lives displayed in open court for all to witness with each word recorded by the court reporter. The majority of all divorce hearings are in fact held in a public courtroom where anyone, including members of the parties' communities, members of the press and other strangers, can and do sit in court and watch as parties pour their hearts out and discuss details of their personal lives, their children's lives and of their personal and business finances. It can be embarassing as well as stressful for all involved.

Mediation, on the other hand, is designed to be a private process with laws that protect everything that is said and prepared for the purpose of mediation from being disclosed outside of the mediation for any purpose unless all parties to the mediation agree otherwise.

Mediation takes place in the very private setting of one or more private conference rooms or offices. The only people present are the mediator and the individuals needed to make decisions (i.e., the parties and attorneys). There is no court reporter to record what happens. Mediators destroy their notes and files after the completion of the mediation and cannot be subpoenaed to testify in any legal proceeding on the matter (with certain potential, but extremely rare exceptions in cases of significant competing public policies).

There is a strong public policy in California to promote settlement and to encourage Alternative Dispute Resolution processes such as mediation. Protecting the privacy and confidentiality of the mediation process is intended to - and does - further that goal by promoting open dialogue and the exchange of key information to help foster meaningful settlement discussions.

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