Pennsylvania’s Mediation Statute protects from the discovery process, communications occurring during mediation, and also documents that are created during mediation. A few limited exceptions to confidentiality are identified in the Statute, which exceptions apply in circumstances where there are:
- Later legal proceedings to enforce a mediation agreement
- Felonious threats of bodily harm or damage to real or personal property
- Fraudulent communications relevant in an action to enforce or set aside a mediation agreement
- Documents that exist independent of a mediation
Unless one of the above exceptions is present, the protection afforded mediation communications and documents, is generally regarded as sacred within Pennsylvania’s state court system.
Mediation confidentiality is less clear within the federal court system. Some federal districts observe a federal mediation privilege by applying Federal Rule of Evidence 501, while others do not. The Third Circuit has not addressed the question of a federal mediation privilege. The ADR Act of 1998, mandated district courts offer at least one ADR option, and promulgate local rules addressing the confidentiality of the ADR process. As an example, the Western District of Pennsylvania crafted a local rule that provided for a presumption of confidentiality, but permitted the use of a balancing test to determine whether, in any given circumstance, the benefits of preserving confidentiality were outweighed by the benefits of requiring disclosure. In Gatto v. Verizon Pennsylvania, Inc. the use of such a balancing test resulted in a mediator being subpoenaed to testify. Following Gatto, the local rules for the Western District were amended to provide greater confidentiality protections.
Confidentiality is an essential component of mediation. Mediators must therefore be always mindful of confidentiality issues, and be ever vigilant to protect and preserve the confidentiality of the mediation process.