The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or Crucial Predictability?

Abstract

This article explores the importance of confidentiality in mediation, the need for uniformity in parties' expectations for that confidentiality, and the confidentiality protections of the Uniform Mediation Act (UMA) adopted by the National Conference of Commissioners on Uniform State Laws in August 2001. Professor Deason argues that confidentiality is important for three separate reasons: to promote communication with the mediator and the adversary party; to maintain the neutrality of the mediator; and, in litigation, to keep mediation and judicial functions separate. She maintains that in order for confidentiality to have its desired effects during mediation, parties must be able to anticipate the protections that would apply in later litigation. The current variability in confidentiality protection among jurisdictions, the multiple forum options that are frequently available, and the overwhelming uncertainties in applicable law-in terms of both choice of law and courts' interpretations of poorly drafted and ambiguous provisions-combine to make predicting confidentiality difficult and unrealistic. Uniformity in state confidentiality provisions would largely bypass these problems and is the only practical approach for improving predictability. Professor Deason closes by discussing the close, and sometimes controversial, policy calls embodied in the UMA privilege, in particular the exceptions that call for judicial balancing. She concludes that states should look beyond their current individual policy choices to the contribution uniformity would make in the overall climate for mediation.