When Confidentiality Is Not Essential to Mediation and Competing Interests Necessitate Disclosure

Authors

Patrick Gill

Abstract

Mediation is a process where a neutral intervener helps disputing parties develop a mutually beneficial resolution. Confidentiality is an established element of mediation. In general, confidentiality furthers the ability of the parties to seek mutually beneficial outcomes to disputes that would otherwise customarily produce a win/lose result. Confidentiality encourages parties to explore their underlying interests, without fear of the repercussions of revealing such information. Arguments are asserted that mediation will not succeed without the assurance that communications will be protected by a confidentiality privilege. The Uniform Mediation Act (UMA) has attempted to clarify the various confidentiality protections afforded by individual states. No confidentiality statute that includes the UMA provision creates an absolute confidentiality privilege, and in fact all such statutes provide a number of express exceptions. One such exception exists when mediation information is sought for use in a criminal proceeding. A criminal defendant is entitled under the United States Constitution to present a complete defense and the confidentiality privilege protecting mediation can intrude on a criminal defendant's constitutional rights. Mediation is now well-established, and the need for confidentiality to maintain the effectiveness and integrity of the process may not be as necessary as once thought when there is a substantial competing interest.

Recommended Citation

Patrick Gill, When Confidentiality Is Not Essential to Mediation and Competing Interests Necessitate Disclosure, 2006 J. Disp. Resol. (2006)
Available at: https://scholarship.law.missouri.edu/jdr/vol2006/iss1/18