Fast Facts from Weibrecht & Ecker, PLLC – New Hampshire based Family Law firm, Dover, NH & Portsmouth, NH.

Mediation Confidentiality

What is important to know about confidentiality as a client of meditation?

If you are concerned about the confidentiality of your mediation process, you should directly ask your mediator what their policy is about confidentiality. Policies differ from mediator to mediator, but there are certain expectations you should be able to have in a New Hampshire mediation.

Professional confidentiality.

This type of confidentiality refers to the discretion that a professional mediator will exercise in not sharing information or facts or details about your life with people outside the mediation process in casual conversation.

This type of confidentiality is not dictated by any rule or statute, but rather, flows from an edict of professionalism similar to what you would expect from your accountant or your dentist or some other professional of whom you would expect discretion in not discussing personal details of your life with others. We take this very seriously in all of our mediation work at Weibrecht & Ecker, and you should be able to expect it from any mediator you work with.

Confidentiality between the individual parties and the mediator.

This type of confidentiality refers to the fact that during your mediation process there may be times when the mediator has conversations with either of the parties separate from one another. This can also be called having an individual caucus with a party. Individual caucuses are helpful because they provide the mediator the opportunity to fully explore the interests and concerns of an individual party without that party needing to feel concerned about their impressions and opinions being judged by the other party. Most mediators have a professional policy of keeping caucus discussions private unless it would be helpful to the settlement of the case. However, it is important for you to know that some mediators take the opposite approach: namely, they assume that details disclosed in caucus are permissible to share unless the disclosing party has explicitly requested that the mediator not share them. What is important for you as the client in mediation is to clarify with the mediator what information that is disclosed in an individual caucus will be shared with the other side.

Admissibility of evidence, information or documents disclosed during mediation.

This principle of confidentiality refers to the fact that information or documents that are disclosed during mediation are often not permitted to be introduced in a court hearing or trial at a later date. The underlying purpose of this rule is that it allows parties to speak candidly about their interests and positions and to make proposals during meditation without the fear that their statements will then be used against them in a later court proceeding if mediation is not successful in resolving all issues. This type of confidentiality is not black and white and may be governed by several different rules or statutes. There are rules of evidence in New Hampshire that prohibit certain information related to a settlement discussion from being introduced at a trial or hearing. There are also court rules and administrative rules that prohibit the admission of certain information if the mediator is a “Certified Family Mediator,” which is a designation provided by the New Hampshire Family Mediator Certification Board. (For more about the certification process for mediators and a directory of certified mediators see https://www.oplc.nh.gov/family-mediator/.)

These important protections are in place to protect individuals disclosing information freely and will require a very strong argument to allow such information to be provided at a later hearing. This area of the law can indeed become quite complicated. What is important for individuals undergoing mediation is to understand that there is no iron-clad guarantee that information disclosed in mediation can never be revealed in court at a later date and to understand that there is more protection in this area provided by mediators that are certified by the State of New Hampshire.

weibrecht-law-team Should you have any specific needs regarding mediation, please contact our offices directly and speak with one of our attorneys who are also Certified Family Mediators, Kimberly Weibrecht or Jessica Ecker.

Mediation Confidentiality, Fast Questions and Answers