Settlement and Alternative Dispute Resolution
ADR
Mediation privilege prevents mediation communications from being admitted or discovered. It is created by statute in most states, with the Uniform Mediation Act adopted in some, and differs from mere confidentiality by conferring a testimonial privilege.
Exceptions typically include threats, crimes, and enforcement disputes.
Alternative Names:
Privilege for Mediation Communications, Mediation Communications Privilege
Why it Matters?
The distinction from confidentiality matters because a privilege can be asserted to prevent testimony while a confidentiality obligation may only support a contract claim for breach. Whether the mediator can be compelled to testify is the practical test, and jurisdictions differ. Where a party anticipates a dispute about whether agreement was reached, memorializing terms in a signed writing at the mediation avoids relying on the privilege analysis entirely.
Frequently Confused with
Related terms
Frequently asked questions
How does privilege differ from confidentiality?
How is an enforcement dispute avoided?
