Mediation Confidentiality Privilege
The legal protection that makes statements, offers, and mediator work product from a mediation inadmissible and generally undiscoverable later.
Mediation confidentiality privilege shields what is said and offered during mediation from later use in litigation or arbitration. It is broader than Federal Rule of Evidence 408, which only bars using settlement offers to prove or disprove liability. Mediation privilege statutes, many modeled on the Uniform Mediation Act, can bar disclosure of mediation communications for any purpose, including impeachment.
The privilege belongs to the participants and, in many statutes, to the mediator as well, meaning either can block disclosure. Recognized exceptions are narrow: communications threatening bodily harm, disclosures needed to prove or defend a claim of mediator misconduct, or communications needed to enforce a resulting settlement agreement.
Juricratic's evidence record treats mediation-privileged communications as a hard exclusion category. They are never ingested into the searchable case record or exposed to any simulation dial, distinct from ordinary discoverable-but-unfavorable evidence, which the engine can still model as a weighted fact.
How it actually shows up
Counsel preparing for mediation rely on the privilege to negotiate candidly, testing settlement numbers and admitting weaknesses they would never concede in open discovery, and should confirm which state's or the federal common-law standard governs, since privilege scope is not uniform.
- Does mediation privilege cover the final settlement agreement itself?
- No. The agreement is enforceable and discoverable. The privilege protects the negotiation communications leading up to it, not the signed contract.
- Can a mediator be subpoenaed to testify about what a party said?
- Generally no. Most mediation privilege statutes bar the mediator from testifying about mediation communications absent a recognized exception.
- Is mediation privilege the same in every state?
- No. Scope, exceptions, and whether it is evidentiary or a true privilege vary by state statute and by whether the mediation was court-annexed.
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