Resolve Your Dispute Without Going To Court

Understanding “confidential” vs. “privileged” in mediation

On Behalf of | Jul 14, 2024 | Mediation

One of the primary reasons your clients may opt to settle a dispute via mediation rather than litigation is that mediation typically provides more privacy. Whether someone is dealing with a personal matter like a divorce or dealing with a business matter, like a partnership dispute, they likely don’t want to run the risk of court filings getting into the public sphere. This can cause personal, reputational and financial harm.

There are two terms that often get used interchangeably by clients – and even sometimes by legal professionals — in mediation: confidential and privileged. Both refer to what can and can’t be discussed outside of mediation. However, there are important differences that your clients should understand. Let’s take a brief look at both.

Confidential 

Confidentiality refers to any part of what happens or is disclosed during mediation that can’t be discussed outside of legal or other formal proceedings. Since the Uniform Mediation Act (UMA) only covers what can and can’t be discussed in such proceedings, if a client wants to designate that information can’t be shared in other settings, like personal conversations, social media posts or any communications outside of these proceedings, they need to be codified in a confidentiality agreement before mediation begins.

Privileged 

Privileged information refers to things that can’t be discussed in any legal or other formal proceeding that may follow the mediation. There are some exceptions – for example, around child abuse and violent crimes. The UMA lists three types of privileges: those granted to the mediating parties, those granted to non-participants in the mediation and those granted to the mediator.

Most people are interested in keeping information confidential rather than privileged. That’s why, as noted, it’s critical for the parties to determine what testimony, documents and other information to include in a confidentiality agreement before any proceedings begin. However, it’s still important for the parties participating in mediation to understand what their obligations and rights are regarding both confidential and privileged information. With experienced guidance through the mediation process, clients can better understand these and other elements of mediation.