Divorce mediation is like the Las Vegas of Alternative Dispute Resolution (ADR) methods. It’s for adults only, and what happens there, stays there. The promise of confidentiality is a cornerstone of mediation. However, there are a few exceptions to confidentiality that participants should be cognizant of before placing their bets on the mediation table.
Mediation is a favorable alternative method to resolving disputes in divorce. In many jurisdictions, it is mandatory for child custody disputes and discretionary for financial aspects. A successful mediation requires full candor from the parties. In many states, mediation is governed by a patchwork of statutes, but in 12 jurisdictions [District of Columbia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, Washington (legislation introduced in Massachusetts, New York)], divorce mediation is governed by the Uniform Mediation Act (UMA). The UMA ensures that mediation communications are confidential to the extent agreed by the parties, or provided by other law or rule of that State. A “mediation communication” means a statement, whether oral, in a record, verbal, or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, reconvening a mediation, or retaining a mediator. The UMA allows a mediation participant to refuse to disclose, and prevents any other person from disclosing, a mediation communication. So, generally speaking, a statement made by a participant during mediation is privileged from disclosure in the divorce proceeding. However, just like the aftermath of an illicit weekend in Las Vegas, there are exceptions to the rule of confidentiality.
First, consider who is participating in the mediation. It may not necessarily be limited to just the parties themselves. Under the UMA, an attorney or other individual designated by a party may accompany the party to and participate in mediation. A “Non-Party Participant” is a person other than a party or mediator who participates in mediation. Confidentiality and privilege apply to non-party participants as well.
Of course the participants may voluntarily waive the privilege. To do so, it must be an express waiver. A waiver cannot be implied by conduct. This is typically done by a written agreement. All parties must waive the privilege before any statement may be disclosed.
Also, it is important to note that it’s only the communication in mediation that is protected by the privilege, not the underlying facts giving rise to the communication. Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery by reason of its use in a mediation. For example, a party who learns about a witness during mediation is not precluded from later subpoenaing that witness in the divorce case.
The exceptions to confidentiality and privilege generally fall into categories like safety or fairness, and there are some rather obvious situations when the privilege may not be invoked.
Under the ‘Safety’ category:
- A person who intentionally uses a mediation to plan, commit, or conceal a crime or ongoing criminal activity is precluded from asserting a privilege.
- A threat to inflict injury or commit a crime of violence is not privileged from disclosure. If a credible threat is made, the mediator may likely report the threatening statement to the police or the court.
- A statement that is made to prove or disprove abuse or neglect is not privileged, but only in a proceeding where a child protective agency is a party. Thus, a mediation statement evidencing child abuse may be admitted in a juvenile proceeding, but it likely remains privileged for the divorce or custody proceeding. In many states, a mediator is a mandated reporter of child abuse or neglect.
Under the ‘Fairness’ category:
- A person that discloses or makes a representation about a mediation communication which prejudices another person in a proceeding is precluded from asserting a privilege so that the other person may respond to the prejudicial disclosure.
- A statement that would prove or disprove a claim of professional misconduct filed against a mediator is not privileged. In other words, mediators must be accountable for grievances while allowing the mediator to defend himself.
- A statement that would prove or disprove a claim to rescind or reform a contract is not privileged if a court determines that the evidence is not otherwise available and the need for it substantially outweighs the interest in protecting confidentiality. This exception involves contract defenses to the enforcement of the mediated agreement.
For all the exceptions, only the portion of the mediation communication necessary for the application of the exemption from non-disclosure may be used.
Finally, although the rules of confidentiality and evidentiary privilege apply in the divorce proceedings, there may still remain questions about whether the expectation of confidentiality applies outside the courtroom (such as to family, friends, media, and other third parties, etc.). It may be wise for parties to discuss and agree upon the expected boundaries of non-disclosure to third parties.
The expectation of confidentiality is key to encourage full candor by the parties during mediation. The Uniform Mediation Act provides the evidentiary privilege to do so, but there are limits and exceptions. Knowing this, parties may guard their privacy and avoid the surprise of an unexpected disclosure. Parties should seek the advice of their own attorney before participating in mediation.