FAMILY LAW ARTICLES

Confidentiality of mediation; an alternative to tradition

Mediation is an increasingly popular format for couples who wish to file for divorce. There are several benefits that stem from keeping the divorce out of court. Topping the list is a faster resolution process because clients are not at the mercy of a crowded court schedule, and a quicker resolution can also mean less expense. Many couples also like the fact that they themselves will find solutions for their disputes rather than having a stranger, a judge, decide. It also appeals to those who like privacy because mediation typically does not involve a public record of the case’s details.

California‘s confidentiality clause

Confidentiality is an important part of mediation because it enables the parties to speak freely in hopes of finding common ground to resolve matters, or provide the reassurance that what is said will not later be used against a party if there is litigation. However, there are times where there are exceptions to the confidentiality rule, such as:

• Criminal actions precluded from statutory protections
• Evidence that is otherwise admissible or subject to discovery outside of mediation
• An alleged breach of the mediation agreement
• Attorney malpractice or misconduct in handling the case

A knowledgeable mediator can make the difference

Confidentiality can be complicated.  For instance, a New Jersey Appellate court recently held that a Memorandum of Understanding (MOU) drafted and signed by the attorney but not by the two parties is unenforceable and therefore not confidential. There are other notable exceptions to confidentiality here in California such as if the parties mutually agree to disclose information from mediation, they may do so with a written agreement, but it is best to discuss the matter with an experienced family law attorney who handles mediation regularly. They understand how these laws work, which ideally means an equitable solution. An effective attorney can also ensure that you can hold the other side accountable during and after the mediation process.