A clear description of Confidentiality in Mediation
Joseph Maurer's description of confidentiality in mediation is also one of the clearest I have read:
We understand that privacy is important. From the start, all communications are held in confidence.
In a personal context this means that we won’t repeat anything you say – the things you choose to share, the stories you tell, the offers you make – all stay confidential.
In a legal context this means that communications made or submitted during the process from the moment of its inception shall be confidential to the extent permitted by law under California Evidence Code Sections 1115-1128.
No new evidence is created in the mediation process and all communications are ‘off the record.’ That is, nothing from the mediation is admissible in court, nor is it subject to discovery or compelled disclosure in noncriminal proceedings. The mediator can not testify about party communications or conduct in court.
Omni Mediation and the parties may disclose information about the process to their respective support people such as attorneys, therapists, provided that all such persons are also informed that the information is privileged under the terms of our agreement. How this process shall be managed between Omni Mediation and the parties shall be an ongoing conversation through the process as needed. As stated above, we recognize that privacy is important.
Confidentiality is a cornerstone* of the mediation process. Mediation is perhaps the most confidential forum and process available. It is a safe forum for the private reality testing of potential agreements, and a safe forum for making sure communications are heard and understood by other parties. We are happy to discuss any concerns you have in the management of this process in case the parties do wish to potentially release some information in a controlled manner. But that’s up to you. The process is confidential – full stop."
* On this, I differ. Confidentiality is the ideal but not an essential element of the mediation process. (JF)