Originally from Alternatives to the High Cost of Litigation

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The evidence is in. After 43 years of federal practice under Rule 408 of the Federal Rules of Evidence (1975); 19 years of New York practice under CPLR 4547 (1998); and 16 years of practice in various states under the Uniform Mediation Act (2001), we can conclude: Statutory confidentiality is not necessary for effective mediation. 

The UMA provides limited confidentiality for mediation; FRE 408 and CPLR 4547 provide almost none. In jurisdictions governed by them all, there is no evidence of adverse effects on the use or effectiveness of mediation.

California remains the big outlier, and its stance has had a significant impact on proving a case of attorney malpractice. The state’s so-called “absolute confidentiality” rules (Cal. Ev. C. 1115, et seq.) stymie consumer protection and spit in the eye of the Rule of Law. All for no good reason.