What Are the Confidentiality Restrictions in Mediation Sessions?

Learn about confidentiality restrictions for mediation sessions according to Equal Employment Opportunity Commission (EEOC). Find out what role lawyers can play during a session.

What Are the Confidentiality Restrictions in Mediation Sessions?

The parties involved in a mediation session must be able to trust that confidential information shared during the session will remain confidential. To ensure this, the Equal Employment Opportunity Commission (EEOC) has established strict confidentiality rules for its mediation program. The mediator and the parties must sign agreements to keep everything that is revealed during mediation confidential. Mediation sessions are not recorded or transcribed, and the notes taken by the mediator are destroyed.

In addition, the EEOC's investigation and litigation functions are prohibited from performing any other function related to the charges. It is not necessary to have an attorney or other representative to participate in the EEOC mediation program, but either party may choose to do so. The mediator will decide what role the lawyer or representative will play during mediation. The mediator may ask for advice and advice, but not to speak on behalf of one of the parties.

If one of the parties plans to bring an attorney or other representative to the mediation session, they can discuss it with the mediator before the mediation session. In almost half of the cases that are mediated, the agreement involves a non-monetary benefit. At the beginning of mediation, all parties present in the room must sign a “mediation agreement” as well as a “confidentiality agreement”, which states that everything that is discussed in the room is confidential. The mediator is subject to these confidentiality requests. The “Mediation Agreement” and the “Confidentiality Agreement” also state that neither party can subpoena or depose the mediator in the event of future litigation. The Confidentiality Agreement also contains the Anti-Gag Notification Statement of the Whistleblower Protection Improvement Act under 5 EE, S, C.

This confidentiality plays an important role both in joint sessions in which all contenders of the mediation session participate, and in private meetings that the mediator may hold with one or more of the parties during the session. All differences between mediation and arbitration stem from the fact that, in mediation, parties retain responsibility and control of their dispute and do not transfer decision-making power to the mediator. This law has rarely been reviewed by Massachusetts courts, reflecting how those involved in mediations have understood, sought and adopted the principle and importance of confidentiality in mediation. Some legal exceptions include when disclosure is necessary to initiate criminal proceedings; when it is necessary to demonstrate coercion or fraud that led to a mediated agreement; to establish existence or terms of a settlement agreement; and when necessary imposing sanctions or sanctioning an attorney in connection with a mediation procedure. This Court held that mediation materials are protectable and not admissible as evidence and, in addition, that privileged status of these materials cannot be waived. The court allowed a limited investigation of communications between plaintiff's lawyer and mediator to clarify whether mediator had given prior permission to depart from regulations. The mediator must enjoy trust of both parties and therefore it is crucial that both parties fully agree to appointment of proposed person as mediator.

Specifically, defendant said plaintiff and his lawyer did not attend “in person” as required by court's mediation referral order and attached Southern District Mediation Rules. The WIPO Mediation Regulations contain detailed provisions also intended to preserve confidentiality in relation to existence and outcome of mediation. The mediator appointed under WIPO Mediation Rules is competent to deal with all aspects of any dispute. However it should be noted that there is no limitation on competence of mediators appointed under WIPO Mediation Rules to deal with different types of matters.