Mediation

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.