Editor’s note: This article describes a hypothetical situation.
Bob prepares intensely for mediation. He spends a lot of time preparing his client so the client’s “extemporaneous” remarks in joint session send a strong message to the other side and suggest creative ways to settle the dispute. And he incorporates all kinds of client documents and client information in his pre-mediation memoranda and in the PowerPoints he presents. Relying on the Pennsylvania “mediation confidentiality” privilege, 42 Pa. Cons. Stat. Ann. Section 5949, Bob assures his clients they should not worry that their confidential documents and information will later be used against them if the mediation is unsuccessful and the parties end up back in litigation.
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