Confidentiality at mediation is necessary, and it is not an evil necessity. Confidentiality of the conversations and substance of mediation is equally critical to cases that settle and those that do not. These days most parties to a successful mediation which ends in settlement do not want the results published or shared. For those parties to a mediation that was not immediately successful in the first session, confidentiality is even more important. It helps preserve negotiation position for later resolution sessions (a second mediation, arbitration, settlement conference, pre-trial conference). If any substantial information is shared about mediation, then the parties’ respective motivation and ability to continue settlement discussions are limited and sometimes destroyed. The California Lawyer magazine recently published an article on the important of confidentiality at mediation. Now in the environment all parties to a dispute find themselves in (limited access to courts, escalating expenses), mediation is a critical part of every case. It is no longer just an “option”, it is a necessity.
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