What Happens In Mediation Stays In Mediation

Guest post by Andrea Doneff [1]

On November 18, 2013, the Georgia Commission on Mediation reminded mediators and attorneys that “Mediation Confidentiality is Forever.”  In Advisory Opinion 8, the Commission clarified that neither mediators nor attorneys may talk about mediation discussions, results, or processes that could identify a specific case without an agreement in advance between the parties about what can be discussed.  The Commission emphasized that, if the parties anticipate talking with the press or public about issues that were discussed in mediation, they should decide who may talk and what will be said.  They should then write that decision into their mediation agreement.

The Commission clarified that the only things confidentiality does not apply to are:

  • The fact that a mediation occurred;
  • The names of the parties;
  • The names of the attorneys;
  • The names of the neutrals;
  • Information on whether the parties appeared at the mediation;
  • The outcome of the mediation or a written and executed mediation agreement (unless there is a confidentiality agreement or court ruling about confidentiality related to the outcome)

The Commission noted that, “Although the parties’ written and executed mediation agreement, once filed with the court, is a public document, a mediator exercising caution and best practices would refrain from using or referring to the mediation agreement or the contents therein.”

One aside by the Commission could have interesting implications for mediators who are registered with the GODR and mediate cases that are not referred by the court-connected ADR program: “the Commission on Dispute Resolution claims jurisdiction over ADR cases arising out of approved ADR court programs and over the conduct of registered mediators in any ADR setting.”  This is a clear indication that the Commission claims jurisdiction over registered mediators conducting non court-referred mediations.

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[1] Printed in the The Atlanta Bar Association newsletter for the Dispute Resolution Section.

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