Mediation and Confidentiality
Focus on Virginia
What is Mediation?
Mediation is a process in which a mediator, a neutral person, facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute. A skilled mediator facilitates a dynamic, structured, interactive process, using specialized communication and negotiation techniques to assists the disputing parties in resolving conflict in a “party-centered” process. A mediation focuses upon the needs, rights, and interests of the parties, the strengths and weaknesses of each party’s position, with analysis of the benefits of an agreed compromise against the uncertainty and expense of a continued adversary fight or litigation.
Is Mediation Confidential?
In order to facilitate the process of mediation, the parties need and expect confidentiality of the proceedings, inviting open communication that will not be used against any party of a resolution is not obtained. The confidentiality is ensured through both statute and by agreement of the parties. When disputes arise regarding the terms of confidentiality, the statutes of the relevant jurisdiction and the mediation agreement should be examined.
Generally speaking, all memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation, which relates to the controversy being mediated, including screening, intake, and scheduling a mediation, whether made to the mediator, mediation program staff, to a party, or to any other person, is confidential. However, a written mediated agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing.
What Are The Exceptions To Confidentiality in Mediation?
Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the mediation agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the mediator or mediation program and a party to the mediation for damages arising out of the mediation, (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against the mediator by a party to the mediation to the extent necessary for the complainant to prove misconduct and the mediator to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-581.26 in a proceeding to vacate a mediated agreement, or (ix) as provided by law or rule. The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege. See § 8.01-581.22. Confidentiality; exceptions
Statutory Exceptions to Confidentiality in Mediation.
Settlement of wrongful death actions presents a unique speed bump in confidentiality. The Virginia Supreme Court using principles of statutory construction concluded that the specific and express terms of Code § 8.01-55 and the right of public access provided for by Code § 17.1-208 in the context of the records of court approval of the compromise settlement of a wrongful death claim override the permissive terms of confidentiality expressed in Code § 8.01-581.22. Perreault v. Free Lance-Star, 276 Va. 375, 389, 666 S.E.2d 352, 359 (2008)
Similarly, settlements with the Commonwealth of Virginia is another speed bump in confidentiality. Va. Code Ann. 2.2-514, which includes personal injury liens in favor of the Commonwealth under Va. Code § 8.01-66.9, states expressly, “No settlement under subsection A shall be made subject to a confidentiality agreement that prohibits the Commonwealth, a state agency, officer or employee from disclosing the amount of such settlement except where such confidentiality agreement is imposed by a court of competent jurisdiction or otherwise is required by law.” See Chan v. Commonwealth, No. CL15000716-00, 2015 Va. Cir. LEXIS 210, at *7 (Cir. Ct. July 28, 2015).
Evaluation or Therapy Is Not Mediation.
The court will not permit exclusion of evidence under the label of mediation where a subject-matter expert like a psychologist, therapist, or social worker) is sought out for the purpose of giving advice and counsel with respect to a particular problem, especially the session involved advice from the mental health professional, the session was entered into as an evaluation or as therapy, and there was no formal agreement to mediate and other indication that the parties and the therapist considered it a mediation. See Anderson v. Anderson, 29 Va. App. 673, 683-84, 514 S.E.2d 369, 374-75 (1999).