Originally from Dispute Resolution Journal

The following article tackles a subject that continues to fire many discussions: mediation privilege. The protection of confidentiality in mediation communications is a well-established privilege, but it doesn’t stop the debate on just how far this privilege should extend. Anne Burr examines the concept in general, as well as within the context of the Uniform Mediation Act. She concludes that mediation privilege is “crucial to fostering the growth of mediation and maximizing its benefits.”

As the United States remains in the shadow of the September 11th tragedy, many conflict resolution professionals are looking at mediation with new appreciation.1 Mediation is a peacekeeping and problem-solving process facilitated by a third person who assists parties in negotiating a mutually agreeable settlement. It features an informal process, a neutral mediator, disputants who settle of their own accord and, most importantly, privileged communications protected from forced disclosure.2

The term “mediation privilege” refers to the protection of communications in mediation.3 The extent to which the privilege of confidentiality in mediation should be protected has been the subject of considerable debate.4 Many commentators assert that a mediation privilege is required to promote the sense of trust necessary to the workings of mediation.5 However, others argue that a blanket mediation privilege is unnecessary, as confidentiality is protected by contract and evidentiary rules, and will frustrate other important social and legal policies.6

The debate has grown more heated since Aug. 16, 2001, when the National Conference of Commissioners on Uniform State Laws (the “NCCUSL”) enacted the Uniform Mediation Act (the “Act”).7 The Act, scheduled for presentation to the American Bar Association (the “ABA”) in February 2002, promotes the increasingly important use of mediation as an appropriate means of dispute resolution by protecting the rights of participants to confidentiality.

This article examines the concept of mediation privilege, reviews the alternatives to the mediation privilege, and considers the criteria for establishing a privilege. It also discusses the costs and benefits of the mediation privilege and reviews the mediation privilege under the Act. The article concludes that the Act should be adopted by the ABA, and ultimately each of the states, to protect confidential mediation communications and preserve the trust necessary for the continued growth of mediation.