Confidentiality Of Mediation and Settlement Conferences

Mediations and judicial settlement conferences are the primary methods for compromise between litigants. Most parties to such discussions agree that the confidentiality of settlement discussions, mediation statements, and the like encourages participants to be candid and forthcoming, which increases the chances of a pretrial resolution, but there is a question that precludes those discussions from compelled disclosure, either from a party’s intra-litigation adversary or a third party during subsequent litigation. The statute requires each federal district court to implement alternative dispute resolution programs and impose confidentiality requirements on the participants. However, the rules vary. The Sixth Circuit recognizes a “settlement privilege.” Other circuits require a heightened discovery standard for dispute-resolution negotiations. Some district courts have adopted a mediation privilege pertaining to formal mediation. Todd Presnell, writing in Today’s General Counsel, suggests generating evidence of your confidentiality and non-disclosure intent to dissuade a judge from compelling disclosure.