Privileged Communications
 

One of the main areas addressed by the Uniform Mediation Act is privileged communications, and under what circumstances they will be admissible in a later court proceeding. In an effort to encourage the mediation process parties to the mediation, non-party participants, and mediators can “refuse to disclose and may prevent any other person from disclosing a mediation communication.” As a result, communications made during the mediation process are generally privileged and will not be admissible in a later court proceeding. However, information or evidence that is admissible through other means will not become inadmissible as a result of its use in the mediation process.

 

The mediation privilege may be waived only if it is expressly waived by all parties involved in the mediation. This specifically includes the mediator and any non-party participants. Additionally, if an individual makes a representation about any mediation communication which prejudices another party that individual will not be allowed to assert privilege. However, privilege will only be waived to the extent necessary for the prejudiced party to respond.

 

Exceptions to the general rule that mediation communications are privileged were created in order to prevent individuals from taking advantage of the mediation process. Any communication involving a “threat or statement of a plan to inflict bodily injury or commit a crime of violence” will not be privileged. Likewise, a communication “intentionally used to plan a crime, attempt or commit a crime or to conceal an ongoing crime or ongoing criminal activity” will not be privileged. Other exceptions include communications offered to prove or disprove claims of professional misconduct against a mediation party, non-party participant, or meditator. Any communication offered to prove or disprove “abuse, neglect, abandonment, or exploitation in a proceeding in which a child or adult protective services agency is a party’ will not be privileged unless the department of human services is a participant. Lastly, mediations which are open to the public will not be privileged.

 

The court may choose to admit a privileged communication if the party seeking introduction can show that the evidence is not otherwise available and that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality. The communication must be offered in:

If an exception is granted, only the portion of the communication which fulfills the exception from nondisclosure may be permitted.

 

 

The Uniform Mediation Act also establishes requirements regarding the information the mediator can disclose to the court subsequent to the mediation. Generally, the mediator may disclose only whether the mediation occurred or has been terminated, whether a settlement was reached, and attendance at the mediation. However, the mediator may also disclose a communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against mistreatment (unless the department of human services participates in the mediation).

 

Any report made in violation of these provisions shall not be considered by the court, administrative agency or arbitrator.

 

 

Mediators are also required, under the Uniform Mediation Act, to disclose any potential for conflicts of interest to the parties involved. The mediator must make a “reasonable inquiry” to determine whether there are known facts likely to affect the impartiality of the mediator. Specifically, the act points to a financial or personal interest in the outcome, and a past or existing relationship with a party or non-party participant. If the mediator determines there is a conflict of interest he/she must disclose this fact to the parties before accepting the mediation. When the conflict of interest is discovered after acceptance of the mediation, then the mediator shall disclose as soon as possible.

 

The mediator must also disclose his/her qualifications to mediate the dispute at the request of any party to the mediation. 

 

 

Nicole Legere, Esq., is Assistant Vice President and Senior Counsel at Bankers Advisory, Inc. She is a graduate of the University of Massachusetts at Amherst and earned her Juris Doctor at Roger Williams School of Law. Nicole is admitted to the Bar in Massachusetts and New York. She can be reached at nicole@bankersadvisory.com