Where Are the Risks? An Assessment of Recent Developments in Mediation Confidentiality

摘要

Confidentiality is a key ingredient in a successful mediation. Not surprisingly, mediation agreements typically provide for stringent confidentiality protection, prohibiting the participants from any subsequent disclosures of information shared in the course of the mediation process. Many states have expressly protected mediation confidentiality by statute, including the Uniform Mediation Act, which has been adopted in 11 states and the District of Columbia. See Uniform Law Commission, Acts, Mediation Act ( see also Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability, 85 Marquette L. Rev. 79, 90 n. 40, 41, 43; 92 n. 47, 50 (2001). Case law also is generally supportive of confidentiality protection. Of course, there's a but: No confidentiality protection is ironclad. As with other doctrines that protect information from disclosure, litigants at times try to circumvent the protection when disclosure appears to be advantageous, and on occasion their efforts are successful.