Mediators agree that confidentiality is a crucial element of successful mediations. As reasoned by the Court of Appeals for the Second Circuit, “[I]f participants cannot rely on confidential treatment of everything that transpires during these sessions, then counsel of necessity will feel constrained to conduct themselves in a cautious, tight-lipped, noncommittal manner more suitable to poker players in a high stakes game than adversaries attempting to arrive at a just solution of a civil dispute.”

 

While most stakeholders—parties, attorneys, courts, legislatures, mediation programs, and mediators agree to the principle of keeping everything said during a mediation confidential, codifying language to effectuate this intent has proved to be at best challenging and, at worst, seemingly impossible. The latest attempt to comprehensively address this slippery issue was made by the California Law Revision Commission.