Mediation Settlement and Confidentiality: What you Need to Know
To put it simply, mediation is commonly defined as a means of resolving disputes outside of the judicial system by voluntary participation in negotiations conducted under the guidance and supervision of a mediator.
The word confidentiality is generally described in dictionaries as: “the state of keeping or being kept secret or private”. This concept applies in many situations in our everyday life, without us even noticing it, such as doctor-patient confidentiality.
In the course of a mediation, confidentiality takes on an all new meaning i.e., anything said by the participants or any other party in attendance, including the mediators, any written documents prepared specifically for the mediation, any draft, resolutions, and/or any unsigned mediated agreements shall not be admissible in any court of law or other contested proceeding.
At that point, one might wonder why mediate if you cannot use what was discussed during the mediation session that could help solve all or some of the issues at stake?
The answer to this question is quite simple. It depends on whether or not an agreement was reached. If an agreement was reached how can the mediator help the parties enforced it or not? Here is an example to illustrate our point:
John and Jim had a contract dispute. They went to mediation and reached a settlement agreement which required John to pay Jim an amount of money in monthly installments. John stops paying about half way through the plan. The settlement agreement has a confidentiality clause, which states nothing about this agreement shall be disclosed, meaning that Jim would not be able to use it in a court of law. Jim now wants to sue John for collection of the remaining amount due, but the settlement agreement is confidential. How can Jim proceed?
One approach may be for Jim to file a lawsuit against John for money due and not attach the settlement agreement. The settlement agreement could be filed under seal requesting an in-camera review based on the confidentiality clause. As you can imagine, this alternative would be costly and time-consuming for Jim.
At Mediation Path Silicon Valley, LLC, we suggest a different approach to the parties:
1/ Each time the parties settled we ask them if they want to include in the settlement a provision that would allow disclosure in a court of law for purposes of enforcement.Here for informational purposes only is an example of a provision that the parties may want to include in their agreement:
“This Agreement and each of its terms are binding, enforceable, admissible, and subject to disclosure for purposes of enforcing the Agreement. Except as elsewhere specifically provided herein, the settlement process is otherwise covered by the provisions of Evidence Code §1115 et seq., including § 1119 (which provides that all communications, negotiations, and settlement discussions in the course of the mediation are and shall remain confidential) as well as by Evidence Code §1152 with respect to offers to compromise.”
2/ When no agreement was reached and/or when an agreement was reached but at least one of the parties refuses to include a clause that would make it enforceable we rely 100% on the confidentiality rule in mediation. This way, none of the participants to the mediation can use against the other attendees what was said, written, etc., during the mediation.
In a nutshell, at Mediation Path Silicon Valley we believe reaching settlements are important to all of the parties involved and that the settlement agreement should be drafted in such a manner that it clearly states the terms of the settlement and allows for enforcement.
Mediation Path Silicon Valley, LLC is devoted to supporting families. Call us, if we can be of assistance in helping you resolving a family dispute. Please note that, at MPSV, working remotely with family members, beneficiaries, lawyers etc. via video conferencing or conference calls is not something new to us. We are here to help and allow you to be safe while dealing with important matters.