More About Mediator Agreements

Last week I explained what the “scope of the mediation,” “good faith” and “impartiality” means in a mediator’s agreement. Today we’ll look at one very important term that you can expect to see in the mediator’s agreement.

A cornerstone of any mediator’s agreement is the agreement to maintain “confidentiality.” This term is necessary to enable the parties to discuss all aspects of their dispute freely and to enable the mediator to effectively to assist the parties in reaching a voluntary resolution of their dispute. At the core of the “confidentiality” term is the principle of trust. The parties need to trust that anything they say at the mediation will not be used in any pending or anticipated litigation. In addition, as part of trust-building, the parties will need to reach an agreement about protecting each other’s privacy when using technology. This might include an agreement to exclude anyone from hearing the proceedings who has not been identified to everyone in the room and to not record any of the proceedings or to share any aspect of the process on social media. Agreeing to keep the entire process confidential will go a long way to building trust between the parties and with the mediator.