ADR Confidentiality & Privilege in ADR 1 — Questions and Answers
Question 1: What is the primary purpose of confidentiality protections in mediation?
- To encourage open and honest communication between parties (Correct answer)
- To prevent courts from learning about the dispute
- To protect mediators from professional liability
- To ensure settlements are automatically enforceable
Correct answer: To encourage open and honest communication between parties
Confidentiality encourages parties to speak freely without fear that their statements will be used against them in subsequent litigation.
Question 2: Under the Uniform Mediation Act (UMA), who generally holds the privilege to refuse disclosure of mediation communications?
- Only the mediator
- Only the parties to the dispute
- The mediator, parties, and nonparty participants (Correct answer)
- Only the party who made the communication
Correct answer: The mediator, parties, and nonparty participants
The UMA grants privilege to all mediation participants—mediator, parties, and nonparty participants—each having independent standing to refuse disclosure.
Question 3: Which of the following typically constitutes a recognized exception to mediation confidentiality under most statutes?
- Statements made about settlement amounts
- Threats of imminent bodily harm disclosed during mediation (Correct answer)
- Admissions of liability made in private caucus
- Offers of monetary compromise
Correct answer: Threats of imminent bodily harm disclosed during mediation
Most ADR confidentiality statutes include a public safety exception permitting disclosure of threats of serious or imminent physical harm.
Question 4: What does Federal Rule of Evidence 408 protect in the context of settlement negotiations?
- All communications made in any dispute resolution context
- Offers to pay medical expenses
- Evidence of compromise offers and related statements made during settlement negotiations when offered to prove liability (Correct answer)
- Statements made only in formal mediation sessions
Correct answer: Evidence of compromise offers and related statements made during settlement negotiations when offered to prove liability
FRE 408 excludes offers to compromise and accompanying statements from evidence when offered to prove or disprove the validity or amount of a disputed claim.
Question 5: Which party generally bears the burden of proving that an exception to mediation confidentiality applies?
- The mediator
- The party seeking disclosure (Correct answer)
- The party asserting the privilege
- The presiding court
Correct answer: The party seeking disclosure
The party seeking to override confidentiality protections bears the burden of demonstrating that a recognized statutory or common law exception applies.
Question 6: What is the key distinction between a contractual confidentiality agreement and statutory mediation privilege?
- Contractual agreements cannot be waived by the parties
- Statutory privilege arises automatically by law, while contractual confidentiality requires a separately executed agreement (Correct answer)
- Statutory privilege is always broader in scope than any contractual agreement
- Contractual agreements apply only to arbitration proceedings
Correct answer: Statutory privilege arises automatically by law, while contractual confidentiality requires a separately executed agreement
Statutory mediation privilege is created automatically by applicable law, whereas contractual confidentiality depends on the parties' execution of a separate written agreement.
Question 7: Which of the following is most likely NOT protected by mediation confidentiality under the Uniform Mediation Act?
- A party's opening statement in mediation
- A mediator's written proposal to settle
- A signed settlement agreement the parties intend to be enforceable (Correct answer)
- A party's apology made during a private caucus session
Correct answer: A signed settlement agreement the parties intend to be enforceable
Final settlement agreements that the parties intend to be enforceable are typically excluded from confidentiality protections so they can be enforced as binding contracts.
ADR Confidentiality & Privilege in ADR 1
What is the primary purpose of confidentiality protections in mediation?