4. Mediation: Confidentiality
In some other states, if the parties don’t settle, mediators are allowed to make recommendations to the court. Not so in Texas. In Texas the court is not even allowed to know what went on in the mediation. The confidentiality of mediation includes not just what the parties say, but also how they behaved. The law says, “Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone including the court.” The mediator may not be subpoenaed, and any communication made by a participant in the mediation “may not be used in evidence against the participant in any judicial or administrative proceeding.”
The one exception to this rule of confidentiality is the statutory requirement that knowledge or evidence of child abuse be reported to the proper authorities.
This requirement of confidentiality in mediation is an attempt to keep lawyers and litigants from turning mediation into just another discovery tool. If the mediation process were not confidential, sensible people would be afraid to speak because their statements would be used against them in court.
Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 206-207.
Mediation Portal
1. Mediation: Getting the Flavor of Mediation
2. Mediation: If You Are Ordered to Mediate, Can You Object?
3. Mediation: Should All Cases Be Mediated?
4. Mediation: Confidentiality
5. Mediation Essentials — Opportunity to Tell Your Side of the Story
6. Mediation Essentials — Listening Can Pay Big Dividends
7. Mediation Essentials — The Typical Mediation Format
8. Mediation: How Soon Should the Case Be Mediated?
9. Mediation: How Long Will It Take? How Much Will It Cost?
10. Choosing a Mediator — What You’re Looking For
11. Choosing a Mediator — Weeding Out the Clueless
12. Mediation: It Is Not the Place or the Time for Drama or Surprises
13. Mediation: Unintended Consequences — Mediation Sometimes Is Just a Discovery Tool
14. Mediation: The Mediation Process Is Not a Substitute for the Trial Process
15. Mediation: Understanding the Mediator’s Bias
16. Mediation: Can You Mediate without a Mediator?
17. Mediation: Can You Mediate without a Lawyer Present?
18. Mediation: Mediated Settlement Agreements Are for Keeps
19. Mediation: The Dark Side of Mediation