Originally from Dispute Resolution Journal
Many consider confidentiality to be a hallmark of mediation.
Today, mediation grants its participants the privilege against the
disclosure of mediation communication. The Uniform Mediation Act
(“UMA”) endorses confidentiality, stating that “a mediation
communication is privileged in a proceeding unless waived or
precluded [by other sections of the UMA].” The UMA establishes
no less than three different types of confidentiality privileges:
confidentiality for the parties, for the mediator, and for nonparty
participants of the mediation. The primary benefits promulgated by
mediation confidentiality are twofold: (1) to encourage party
disclosure during the mediation and (2) to avoid any subsequent
divulgence by parties after the mediation that can harm the reputation
of the parties.
While much ink has been spilled in support of mediation
confidentiality, an ever-growing minority has voiced concerns about
the carte blanche acceptance of the confidentiality privilege.
Commentators have argued that mediation confidentiality lacks
empirical data to support such universal adoption, that mediation
confidentiality flies in the face of moral and social goals of public
accountability, and that traditional confidentiality privileges should
not be applied to relationships of uncommon interests (i.e., a privilege
among opposing parties in mediation).
Russell Kostelak received a J.D. from Cornell Law School and a B.A. from Columbia