One reason many people and businesses choose to mediate their disputes is because mediation promises confidentiality. Confidentiality in mediation is protected by Arizona law (A.R.S. § 12-2238). In addition, most mediators also require a separate Confidentiality Agreement signed by all participants in the mediation.
Why is confidentiality important? In litigation, with few exceptions, anyone can attend trials, peruse the case file (pleadings and documents filed in the case) and access Court decisions. For personal matters, like family law cases, parties often say disparaging things about each other, and most people would not like their family, friends, employers, co-workers and children (once they are old enough to obtain court records) to know about those accusations. A business generally works hard to protect its reputation and image. Lawsuits, public accusations and bad rulings can irreparably damage a business. In short, most lawsuits include embarrassing or very private information. Confidentiality is also important because it allows parties to a conflict to speak freely and make offers without worrying that their comments and offers will come back to haunt them later on. The open communication facilitates resolution.
What is protected? The confidentiality protection covers: “[c]ommunications made, materials created for or used and acts occurring during a mediation…” This means that a third party cannot access that information, and no one can admit that evidence in court. There are exceptions to the confidentiality rule. For one, the parties to a mediation can agree to a disclosure. Disclosure may also be necessary pursuant to another statute or to enforce an agreement to mediate. Threats of violence and violence are not protected. A written and signed agreement reached in mediation can be used to enforce the agreement. Parties can reach agreements in mediation further restricting the release of information.
Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or firstname.lastname@example.org. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.
Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260