As the use of mediation as a resource for resolving civil disputes becomes more prolific, both mediators and attorneys representing clients in mediation, who are relying on a confidential process, need to focus on and better understand the issue of confidentiality. It is not absolute and its applicability is not uniform. The one certainty that exists is that no one set of rules fits every situation, and existing statutory and common-law provisions on the issue of confidentiality should not be taken for granted.
Depending on the circumstances, the rules of confidentiality in mediations can be used as a sword or as a shield. As will be discussed below, it is wise for the mediator and the parties to draft their own confidentiality agreements that address the issues of concern rather than rely on statutory or common-law provisions.
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