Many consider confidentiality to be a hallmark of mediation. Today, mediation grants its participants the privilege against the disclosure of mediation communication. The Uniform Mediation Act (“UMA”) endorses confidentiality, stating that “a mediation communication is privileged in a proceeding unless waived or precluded [by other sections of the UMA].” The UMA establishes no less than three different types of confidentiality privileges: confidentiality for the parties, for the mediator, and for nonparty participants of the mediation. The primary benefits promulgated by mediation confidentiality are twofold: (1) to encourage party disclosure during the mediation and (2) to avoid any subsequent divulgence by parties after the mediation that can harm the reputation of the parties.
While much ink has been spilled in support of mediation confidentiality, an ever-growing minority has voiced concerns about the carte blanche acceptance of the confidentiality privilege. Commentators have argued that mediation confidentiality lacks empirical data to support such universal adoption, that mediation confidentiality flies in the face of moral and social goals of public accountability, and that traditional confidentiality privileges should not be applied to relationships of uncommon interests (i.e., a privilege among opposing parties in mediation).