Confidentiality is a hallmark of the mediation process. Information introduced exclusively at the mediation, whether oral or tangible, cannot be introduced in any other civil forum. The Evidence Code spells this out for civil cases; the Government Code applies in administrative cases. Guaranteed confidentiality promotes frankness, especially when people are in caucus with the mediator without the presence of other parties, which in turn facilitates settlement.

Get It in Writing
Each person who is present at the mediation, regardless of their role, needs to sign a joint confidentiality agreement. This can be executed in counterparts.

Though the statutes spell out the confidentiality provisions, executing an agreement assures that each person is aware of the provisions and has consciously committed to abide by them. Many mediation services specifically require execution of a prescribed mediation confidentiality form. The U.S. District Court Approved Mediators Panel for the Central District and the Center for Conflict Resolution which provides mediators for certain state Superior courts have such forms. I am a member of both these panels.

When a mediation is set up, participants will usually receive a packet, including a copy of a confidentiality agreement with instructions about returning it. Participants can expect to receive the document weeks or months in advance.

Though there may be plenty of time to obtain parties’ signatures, attorneys and claim professionals seem to lack the organization necessary to return the agreement in a timely fashion. The demands of the most pressing matters can turn the most efficient of us into procrastinators.

What Is the Most Productive Use of Mediation Time?
Before the COVID pandemic, mediations were almost always held face-to-face. Confidentiality agreements were circulated in the opening joint session. The need for remote, virtual mediation via platforms like Zoom changed this dynamic.Getting signed confidentiality agreements to the mediator is now more unwieldy. Typically, agreements are downloaded, then electronically signed; alternatively, participants can print the agreement, physically sign it, then scan, save and transmit the document. The hiccup occurs when parties do not transmit the signed document before the mediation.

The mediation will not start without submission of the confidentiality agreement. If it has not been submitted, time is spent on the administrative task of gathering the documents, rather than in negotiation.

If parties are benefiting from three free hours of a mediator’s time, is this the best use of that expertise? If this is a paid mediation, do you really want to pay for the mediator’s time spent on this mundane task rather than working on settling the case?

Shun Procrastination

To avoid wasting everyone’s time at the start of a mediation, start working on getting a fully executed confidentiality agreement to the mediator as soon as you have the form. Calendar dates to follow up with the necessary signers just as you would calendar other litigation deadlines. Not only will your mediation proceed more smoothly from the first moment, you will impress the mediator with your dedication to the settlement process.