Confidentiality is the cornerstone of mediation. In previous posts, we have discussed the importance of confidentiality for entertainers and public figures when it comes to disputes. However, mediation confidentiality does not necessarily mean you are immune from the risk of your private information becoming public record. California, Maryland, and a few other states have tried to best to protect private information by implementing strict mediation confidentiality statutes. Depite this, we cannot be sure there is such a things as mediation confidentiality.
In California, Evidence Code §§1115-1128 governs mediation confidentiality agreements and the California Supreme Court has repeatedly supported and emphasized the importance of confidentiality statutes. In the case of Rojas v. Superior Court, the Court held that a third-party could not access or obtain information shared in mediation without the approval of all participants involved in the mediation process. As you can imagine, it can be a nearly impossible task to have all participants sign the mediation settlement agreement and waive their confidentiality. Although it has been ten years since the Rojas case was decided, there have continued to be problems with litigants who want to bring in materials from mediation to the court room. These litigants try to violate the mediation confidentiality agreement and they are not always stopped. There have been cases where the dispute relied solely on information that came from mediation, despite the fact that this information was supposed to remain confidential.
In order for parties and participants of mediation to use their confidential information as admissible evidence in court, all participants must waive their confidentiality. Rachel Ehrlich believes the best way to do this would be to incorporate the waiver into the confidentiality agreement contract. This can be very problematic for the parties involved. Mediation participants and contractual indemnitors may not want to waive their confidentiality because the information in mediation can be used against them. Experts in mediation may also not want to waive their confidentiality if they think their work will become public domain, and therefore impeachment material. As it is clear, there are many parties who would not be pleased with waiver agreements. This can definitely put attorneys, mediatiors, and mediation participants in a difficult position.
We would advise all parties and participants of mediation to speak to their attorney before changing or signing any waiver agreements. While confidentiality agreements will vary by the type of dispute, it is still important to consider all aspects and future implications of signing any contracts. A successful mediator should also be able to explain the details of the agreement and waiver to all parties involved.