With a few specific exceptions, the mediation process is all confidential. This includes all matters discussed during mediation, and the mediator’s notes, records. and recollections. The primary reason for this is to foster a frank and open discussion about the issues being mediated and to allow each side to make settlement offers without the fear that the other side will use the settlement offer in court. This creates an environment that is much more conducive to reaching a global settlement in mediation.

Exceptions to Confidentiality

One exception to the confidentiality rule is if the information or documentation provided in mediation is otherwise “discoverable” through the discovery process (through interrogatories, requests for production of documents, requests for admissions, subpoenas, or depositions). Thus, if you bring some pay stubs to mediation as evidence of your income for purposes of determining an appropriate child support obligation, those pay stubs would not be confidential. This is the case because the pay stubs would be discoverable in a divorce or child support proceeding where each parent’s income is relevant.

Another exception to the confidentiality rule is when a complete agreement is reached during mediation and that agreement is reduced to a written mediation memorandum of agreement that is signed by all participants to mediation. When everyone has signed a mediation agreement (not to be confused with an agreement to mediate), then that signed agreement is not confidential. In such a case, if one of the sides wants to back out of or otherwise rescind the agreement, the other side may introduce into the court record the signed mediation agreement as evidence of the agreement reached in mediation.

Further, some mediators are “mandated reporters” who are required to report to the appropriate authority any knowledge of maltreatment of minors or vulnerable adults. Mandated reporters may include social workers, psychologists, psychiatrists, childcare providers, teachers, police officers, or members of the clergy. Attorneys are not mandated reporters. Therefore, if the mediator is also a mandated reporter and, as part of the mediation process, the mediator obtains knowledge that a child or vulnerable adult is being neglected or physically or sexually abused, then the mediator must report this to the County.  As an attorney, Adam Blahnik is not a mandated reporter.