In recent years, parties and courts have viewed mediation as an attractive alternative for resolving disputes, and with good reason. Mediation can be a useful tool to attempt to resolve high-stakes matters without incurring hefty legal fees, and without the publicity and attention that can come from litigating in open court. However, states vary in their applications of confidentiality and privilege protections associated with mediations. Therefore, before deciding how much information to provide a mediator or the other party in a mediation, disputing parties should be cognizant of the jurisdiction of both their present dispute, and jurisdictions of potential future disputes that may relate to similar underlying facts.

Variations Across Jurisdictions

Several jurisdictions have adopted the Uniform Mediation Act (the UMA), including Georgia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, Washington and Washington, D.C. One of the UMA’s core directives is to ensure the ability for mediating parties to depend on the confidentiality of the proceedings and accompanying communications. Indeed, the UMA protects all “mediation communications” from disclosure, and defines such communications broadly as any statement during the mediation or “made for purposes of” considering, conducting, or participating in a mediation. Uniform Mediation Act Sections 2, 4, U.L.A. MED §§ 2, 4 (2003). However, the UMA makes clear that the privilege is not limitless, as evidence or information that is “otherwise admissible or subject to discovery” is not “protected from discovery solely by reason of its disclosure or use in a mediation.” In other words, parties cannot shield a document from discovery simply by attaching it to its mediation statement.