When it Comes to Mediations, Confidentiality Isn’t Guaranteed

With the advent of the COVID-19 pandemic and lockdown orders, Zoom quickly became the platform du jour for mediations – allowing people to participate ‘live’ from across state lines, borders, and continents.

Against that backdrop, questions about which jurisdiction’s confidentiality laws would apply to any given mediation were called into question. The ultimate conclusion?

In America, there is no absolute guarantee of confidentiality for mediation communications. Why not? Because there is no one national mediation confidentiality law in America.

Instead, federal rules of evidence, local rules of court, state statutes, and the Uniform Mediation Act (UMA) provide various protections for mediation confidentiality. Some states—like California—have strong mediation confidentiality statutes, while others not so strong.

Accordingly, the confidentiality issue comes down to choice-of-law rules being applied by courts. What a court in one jurisdiction might protect as a confidential mediation communication, another may not.