Mediation Confidentiality is the Key

No one really thinks about confidentiality when they schedule mediation. But really mediation confidentiality is the key to a successful mediation. Why? Without it the mediator cannot build trust with the parties and that trust is the key to settling a case.

First first let’s talk about what mediation confidentiality is.

Confidentiality

Confidentiality means many things to many people. The Texas Rules of Civil Procedure outline what can and cannot be discussed after mediation. To boil it down, absent child or elder abuse, the only things that can be talked about after mediation are:

1. Were the parties present
2. Was the mediator paid
3. Did the case settle

Additionally, during mediation there are other restrictions placed on the mediator as part of the confidentiality. If a party discloses something to the mediator, but then asks the mediator not to share it with the other side the mediator is barred from sharing it. Generally this extra information is helpful for the mediator to understand where the party is coming from and how the mediator can help settle the case.

Lastly, anything said or exchanged during mediation cannot be used in Court unless the parties learn about it in another legal manner before trial.

Why Mediation Confidentiality is the Key

Mediation confidentiality is the key to a successful mediation because the parties know that what is discussed will not be made public record. It is a quiet proceeding with just the parties, their attorneys, and the mediator. Mediation is not like a courtroom proceeding where anyone can walk through the door and watch and everything they say is being recorded.

The parties have confidence in the mediator that if they do not want something shared with the other side it will not be. They can feel comfortable explaining their situation fully to the mediator and trusting that the mediator will keep their confidences. For the mediator, that trust and open sharing is key to the mediator finding creative solutions to the situation. Without that trust the mediator may not be able to find the root issue and find a way to resolve the case.

During mediation documents and the positions of parties are shared. These are often adjusted during the mediation. If a party were allowed to say “In mediation didn’t you offer to settle for xyz?” it would hinder negotiations during mediation. No party would be willing to negotiate because they would fear it could be used against them in mediation. The Texas Rules of Civil Procedure specifically state that is not allowed. Therefore, the parties can freely negotiate without having to worry that it could be used against them if they had to go to court.

Ready to book a mediation. Click here to check my availability or email me at fwelsh@welshlawmediation.com.