Many of the ADR articles that have appeared in The Legal over the past few years have highlighted the often-blurred understanding in statutes and court decisions of the concept of confidentiality as it relates to mediation.
Often, “confidentiality” has been characterized simply as an evidentiary privilege, created by statute, rule or court decision, with respect to any mediation communication. The Pennsylvania mediation statute is typical of many that have been adopted in other states. Although bearing the caption “confidential mediation communications and documents,” it is limited to creating a privilege against the admissibility of such evidence “in any action or proceeding, including, but not limited to, a judicial, administrative or arbitration action or proceeding.” Moreover, “disclosure of mediation communication or documents may not be required or compelled through discovery or other process.” Beyond prohibiting the discoverability of such mediation communications or their use as evidence in a proceeding, the statute imposes no restrictions.
