It’s a great question, regarding the difference between confidentiality and privacy.
Most people think that when they go to court, they have confidentiality. And they do have confidentiality with their attorney — in other words, you have the attorney-client privilege that whatever you tell your attorney, they can’t tell anyone else unless you authorize them. And it’s the same thing with your mediator: you do definitely have confidentiality. But you have one thing in mediation that you don’t have in litigation, and that is privacy. By privacy, I mean the right to control the information that’s disseminated about you.
When you go to court, anything that’s filed with the court is not confidential. You cannot seal the record of all of your confidences as you’d like to. So whatever you file in court can become a public record. So your finances, your income, and often what you pay in child and spousal support can become a public record (even in mediation), but in mediation you have so much more that you can keep confidential about things that happen between you and your spouse that would not be confidential if put into the pleadings. So that is a real beauty and an extra added value of mediation that you won’t get in any kind of public forum such as a court.
And even if you settle with two attorneys, you still don’t have that privacy, because you still have the documents that were filed in a public record. In mediation, you file a settlement agreement, and you can have a private settlement agreement and a public settlement agreement protecting all the things that you’re concerned about that you don’t want people to know. So you have confidentiality and privacy.
Mari Frank is a divorce attorney-mediator in Laguna Niguel, CA (Orange County). She has been featured on numerous national television shows including 48 Hours, Dateline, NBC Nightly News, and The O’Reilly Factor and in newspapers across the nation including the L.A. Times, The Washington Post, and The Wall Street Journal.