At the beginning of nearly every mediation, the mediator outlines the ground rules — “Let’s be respectful of each other,” “I’m impartial,” “I don’t control the outcome here — you do,” “I cannot be called to testify at trial,” “What’s said here is confidential.” What does “confidential” mean in the mediation context?
There is a lot of misconception about mediation confidentiality, even among mediators. The problem arises from the use of lay language to suggest one thing, but actually mean another. Litigants hear confidentiality and thoughts of protective orders and nondisclosure agreements come into their head. They think that anything said in the course of a mediation cannot be uttered outside the confines of the mediation. Many mediators knowingly or unknowingly encourage this misconception in order to get litigants to buy into the mediation process and allow them to be candid.
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