Questions and Responses

In my opinion, the rules governing the confidentiality of mediation are still evolving. These rules, albeit somewhat dependent on state law, govern the mediator/client relationship.  The attorney-client confidentiality may or may not apply, depending on the state's rules again. Generally speaking, mediators do not have to be attorneys, and that is why the applicability of the attorney code of conduct can be somewhat ambiguous.

Since you are seeking private mediation services on your own, the best way to protect yourself is to make sure that the mediator you choose has a thorough and written agreement, which everyone signs before engaging in the mediation process.  In my experience, these agreements should define confidentiality as applicable to the mediation process itself and to the one-on-one conversations between the mediator and each individual participant.  These agreements also should specify that confidentiality is to be enforced to the maximum extent allowed under the law. You should look for language that not only protects the verbal communications exchanged during mediation, but also insures the confidentiality of the mediator's notes and file.  Many mediators choose to destroy their files after the mediation is over.  Finally, there should be a provision that states the mediator and the parties agree not to use the mediation process improperly and not to subject the mediator to any future legal proceeding by means of subpoena, ,deposition, etc.

You should know that if proper safeguards are in place, the mediation process usually is more confidential than the court process.

The answer to your question regarding confidentiality depends to some extent on what state you are in.

Some states have statutes which protect the confidentiality of mediation communications. In other states, mediation is part of the court process and the mediator may report later to a judge.

In my own private practice in NY, I have couples sign agreements of confidentiality before beginning mediation to ensure that negotiations will remain confidential. This agreement would probably not protect mediation communications from a third person. I know of a case where the husband's first wife sought information about the mediated divorce from the 2nd wife, because the husband was declaring bankruptcy. The mediator successfully contested the subpoena, but only because she was represented by good lawyers.

Most mediators will provide some type of agreement to mediate at the beginning of the process that includes confidentiality clauses similar to attorney agreements. Like attorneys, there is client privilege. We do not have an obligation to report to agencies such as the IRS. The primary exception to this is allegations of child abuse or neglect.

In OH attorneys who practice mediation are bound by the code of professional conduct for attorneys as well as the ethical standards for mediators. A mediator who conducts a mediation for you should be able to provide you with a reference to the ethical standards s/he utilizes in his/her mediation practice. As yet, there are no statutory ethical standards for mediators in this state. This is very likely to change at such time as a uniform code for mediation practice currently being developed by the ABA and other groups is adopted by the legislature.