Bar Harbor (ME)
July 13, 2004

Confidentiality is an important basic element of mediation.
ACCTM, 2004 Conference

A discussion led by James E. Morris, fellow ACCTM

Parties attending a mediation must enter the discussions with a full knowledge that what is said must take on the privilege of confidentiality.

What is said privately to the mediator in a caucus is not authorized to be disclosed to any other person participating in the mediation.

The mediator can pass on general information when negotiating ancillary points as well as authorized cash amounts in working towards settlement. This can include terms other than cash, which helps entice each of the parties to work closer toward a solution. In order to avoid a misunderstanding, the engagement letter or agreement to mediate must clearly set out the mediator’s obligation ethically to maintain such a confidence. There must be no further disclosure of any information concerning what occurred in caucuses in any future proceedings. The mediator as well can not be called as a witness by any party in future litigation if the settlement has not resulted in a final resolution.

A second form of confidentiality is the understanding among the parties that, should the matter not be settled, neither may use any information learned during the mediation hearing or process to its favor in the litigation as it continues.

Confidentiality maintains the integrity and success of the mediation process.