Confidentiality is a foundational element of mediation and essential in creating a trusted space to have open dialogue. Our mediators start every mediation with a review and signing of an Agreement to Mediate. In response to the COVID-19 pandemic, we have seen significantly more use of virtual mediations (telephonic and video) and observed that it’s sometimes harder for parties to secure a private space. So we took a fresh look at our Agreement to Mediate and updated our confidentiality provisions. Below is the full text with our new language in bold.
AGREEMENT TO MEDIATE
Mediation is a privileged and confidential process. All parties and representatives whose signatures appear below agree to enter into mediation with the intent of reaching a mutually agreeable resolution of the dispute and that the proceedings involved in and information disclosed in preparation for and during the mediation are confidential.
Confidentiality extends to and includes any statements made or documents prepared by any party, representative, Mediator, or other participant. Any documents submitted to the Mediator or statements made during the mediation are for settlement purposes only and are not subject to discovery. The undersigned agree that they will not record, transcribe or voluntarily disclose any confidential information, nor will they seek disclosure of confidential information in any subsequent proceeding, and to be bound by this agreement regardless of the outcome of this mediation. For mediations conducted remotely, the parties acknowledge that the undersigned includes all persons present for any part of the mediation, whether in person, by phone or online. They agree to announce to the mediator and other party(ies) if a person, who had not signed the agreement, joins their room or connection.
Confidentiality extends to and includes any statements made or documents prepared by any party, representative, Mediator, or other participant. Any documents submitted to the Mediator or statements made during the mediation are for settlement purposes only and are not subject to discovery. The undersigned agree that they will not voluntarily disclose any confidential information, nor seek disclosure of confidential information in any subsequent proceeding, and to be bound by this agreement regardless of the outcome of this mediation.
The Mediator will facilitate the discussions and negotiations toward settlement. The Mediator has no authority to decide the case and will not give advice or act as an advocate or attorney for any party. In no event will a Mediator voluntarily disclose confidential information or testify on behalf of a party regarding confidential information or submit any type of report on the substance of the mediation. All parties and representatives agree not to subpoena the Mediator, or any documents submitted to or generated by the Mediator.
All parties understand that the mediation process requires good faith efforts to be successful. They agree to pursue settlement of their dispute through the mediation process in good faith and use their best efforts to achieve resolution. While the parties intend to continue with mediation until a resolution is reached, it is understood that either or both parties may withdraw from mediation at any time. Prior to withdrawing from mediation, the parties and the Mediator agree to discuss the reason for withdrawing from mediation. No party shall be bound by anything said or done at the mediation unless a written settlement is prepared and signed by all necessary parties.
If agreement is reached, the Mediator(s) will ensure the preparation of a settlement agreement. Once signed and approved by all parties, it will be binding on all parties to the agreement.
All program personnel and case coordinators from ADR Vantage are bound by confidentiality and will not disclose the substance of the mediation, except for information revealed to staff solely for purposes of program management and assessment. All documents provided to the Mediator will be destroyed after the conclusion of the mediation unless otherwise instructed by the parties as a condition in the signed agreement.
All parties and representatives have read, understand, and agree to the provisions in this agreement.
[Signatures of all parties]