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What is (and isn’t) confidential in mediation?

On Behalf of | Aug 31, 2023 | Mediation

One of the reasons that business owners, professionals and others prefer to use mediation to settle disputes is its confidentiality. But just what safeguards are in place to protect the confidentiality of anything said or documents presented during the mediation as well as the final agreement? 

According to the Supreme Court of Ohio, under the Uniform Mediation Act (UMA), confidentiality begins “when you consider, conduct, participate in, initiate, continue or reconvene a mediation, or retain a mediator….until you walk away from the mediation experience.”

What does Ohio law say?

Ohio law states, “Mediation communications are confidential, and no one shall disclose any of these communications unless all parties and the mediator consent to disclosure.” This applies to any Court of Claims mediation, and the Court has the authority to impose penalties for any violations of confidentiality.

There are some exceptions to the requirement for confidentiality. For example, parties in a mediation may share information with their legal representative and vice versa. Further, mediators have an obligation to report any of the following that they learn about during mediation:

  • Allegations of child abuse or neglect
  • Threats of harm to anyone, including threats of self-harm
  • Any statements regarding the planning or concealment of a crime and statements “that reveal a felony.”

The UMA also includes professional misconduct or malpractice by the mediator or any of the parties involved as well as any information that’s already publicly available.

How is “privileged” different from “confidential?”

You may also hear the term “privileged,” which isn’t considered the same as “confidential” under the UMA. “Privileged” information cannot be discussed in any kind of formal proceeding (like a court case) unless the party “who has the power to keep someone from testifying decides to allow them to testify” or the information involves one of the exceptions related to criminal conduct or malpractice.

Confidentiality isn’t just something that’s “understood” in mediation. It’s protected by the law. If you have any questions or concerns about confidentiality before you begin mediation or at any time during or after it, it’s important to clarify the regulations before you share the information.