Alan Kirtley


This article will analyze the developing law of the mediation privilege. To begin with, the attributes and uses of the mediation process and the function of confidentiality in mediation will be examined. The existing legal means to protect mediation confidentiality, short of a privilege, will also be reviewed. Then an analysis of policy considerations underlying evidentiary privileges generally will be followed by an assessment of the theoretical underpinnings for a mediation privilege. Finally, a critique of the various forms taken by new mediation privilege statutes and rules will be undertaken. The State of Washington's mediation privilege statute 2 will serve as a comparative benchmark throughout the article. While not perfect, the Washington statute presents a considered approach to many of the scope, content, and operational issues that will be discussed. The purposes of this article are to contribute to a clearer understanding of the workings (and non-workings) of individual mediation privilege provisions and to the thoughtful development of the mediation privilege.



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