At virtually every mediation, the mediator or counsel advise the clients that mediation communications are privileged, so that parties may feel comfortable in offering concessions or otherwise making statements, as disclosure cannot be compelled in any subsequent proceeding.
Recent submissions in the ADR series in The Legal, however, have reflected that the mediation privilege often presents unexpected complications. In two recent articles, I pointed out the greater scope of the mediation privilege in Pennsylvania when compared with Pennsylvania’s exclusionary rule relating to compromise negotiations. I also indicated, however, that in a professional malpractice case, the privilege may prevent both plaintiff and defendant from presenting evidence of mediation communications that would support their respective positions. (This was contrasted with New Jersey’s Uniform Mediation Act (UMA), in which privilege does not bar the introduction of mediation communications introduced to prove or disprove a claim of professional misconduct (N.J.S.A 2A:23C-6(6)).)
