Wednesday, May 2, 2012

Mediation Confidentiality versus Inadmissibility


Confidentiality at mediation has been a hallmark of the process since 1991 when mediation began in our North Carolina Courts.  Further, over the years both our appellate courts and the North Carolina Industrial Commission have supported the understanding that what happens at mediation is confidential as to the mediator and inadmissible in any proceeding unless there is an agreement enforcement or sanction issue.

In agreement enforcement cases the Industrial Commission and the Courts allow participants to testify about what happened at mediation; however, the mediator is only allowed to indicate that an agreement was signed in their presence at the conclusion of mediation.  No other mediator testimony is allowed.

In sanction issues, particularly if mediator sanctions are at issue, then the mediator may testify about what happened at mediation.

A recent Advisory Opinion from the North Carolina Dispute Resolution Commission 12-22 provides further clarification about the difference between "confidentiality" and "inadmissibility."  

According to the North Carolina Standards of Conduct for Mediators and most mediation program legislation and rules, the mediator is required to keep all that occurs at mediation confidential (except as noted above).  Note - this is one of the duties of the mediator - not the parties or counsel.  

Inadmissibility is different from confidentiality.  What is said and done at mediation is not admissible in a later proceeding. This does not preclude parties and their lawyers from talking about what happened at mediation.  

This is the clarification contained in NC DRC Advisory Opinion and all mediators should clarify this distinction in their opening remarks. Counsel should make it clear to their clients that what is said and done in mediation may be inadmissible, but may not be confidential.

1 comment:

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