Is what I say in mediation confidential?

Yes.

Mediation is considered legal sacred ground in terms of confidentiality. What you say in mediation in a private caucus session is private, confidential, and covered by attorney-client privilege. Privilege extends to the mediator as well as to your attorney even though the mediator is not acting as your attorney. Your mediator is still bound by the same level of confidentiality as your attorney is.

No person, not even a judge, can demand that your mediator disclose what you said or what was discussed in mediation.

Except for a few limited exclusions, anything you say and any facts you bring up in mediation are private and confidential. However, it is important that parties understand the mediator must be free to carry back and forth sufficient information to meaningfully negotiate on your behalf so you can come to an agreed settlement. The mediator must have YOUR EXPRESS CONSENT to relay any facts or information to the other party. Unless you give that consent during the mediation, neither your attorney nor the mediator can share anything you say or anything you talk about during the mediation. Your mediator will discuss that with your during the mediation if you have any lingering questions.

The same confidentiality holds true for the terms of your settlement agreement.

Unless your final agreement contains terms that must go back to be memorialized in the court record for a judicial ruling or for future enforcement, what you and the other side agree to in mediation remains confidential and operates as a private contract between you and the other party. Your attorney will be able to advise you on the extent any mediated settlement you reach must be disclosed to the court before you begin the mediation process.

Now, to address the “few limited exclusions” that are not 100 percent private and confidential in mediation negotiations….

By law anything that arises in settlement negotiations that is evidence of sexual exploitation, of an ongoing crime, of child or elder abuse, or of certain financial crimes cannot be kept in confidence. In extremely rare cases there are court-ordered disclosures or matters of fatal disease transmission that may be excluded from confidentiality as well, but your attorney should apprise you of any applicable disclosures prior to the beginning of your mediation. These kinds of exceptions to the privacy and confidentiality of mediation proceedings are exceedingly rare. If you have any questions, ask your attorney.

But you can rest assured 99.9 percent of what is discussed in mediation discussions is totally confidential. And if your attorney feels any of the legal exceptions may apply in your case, your attorney should make you aware of that before we begin the mediation.