Confidentiality – Generally

A question often arises about the degree of privilege that is afforded to communications in mediation. Specifically in Maryland, the answer is implanted in Maryland Rule 17-109. In general, the rule states that “Mediation communications that are confidential under this Rule are privileged and not subject to discovery.” This rule is strictly interpreted. The idea behind this general rule is to allow for the free-flow of ideas and communications in a safe environment that will lead to an eventual agreement and resolution of a dispute. Should the law permit discovery of every communication, disputes would not be resolved and would go to litigation. In such circumstances, mediation efforts would be for naught.

However, this rule is not an absolute. The rule goes on to say that communications, though discussed in the course of mediation, may not be rendered inadmissible solely by use in mediation. In other words, a party to a mediation cannot use mediation as a protective blanket to keep from discovery something that would otherwise be subject to discovery had the issue been brought before the court. The specifics that are covered under this exception are beyond the scope of this article. Consult your attorney for specific information related to this exception. You may access a complete list of the rules of Maryland mediation at: http://www.courts.state.md.us/title17.html.

Confidentiality – The Mediator 

Maryland Rule 17-109(a) governs mediator confidentiality. It states that a mediator and any person present at the request of the mediator shall maintain the confidentiality of all mediation communications. They may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

Two exceptions currently apply to mediator confidentiality and permit disclosure. First, where a signed agreement has been reached between parties, the contents of the agreement may be discussed, unless otherwise specified (i.e., non-disclosure agreement).

Second, a mediator is required to disclose threats of harm or death to a potential victim(s) or to appropriate authorities. The information to be disclosed may be any information that is believed to be necessary to help prevent serious bodily harm or death. Also, where a party to mediation is asserting mediator misconduct or negligence, the mediator may disclose any necessary information to defend against the allegations.

Confidentiality – The Parties

Party confidentiality is covered by Maryland Rule 17-109(b). Similar to mediator confidentiality, it states that parties may enter into a written agreement to maintain the confidentiality of all mediation communications and to require any person present at the request of a party to maintain the confidentiality of mediation communications. Additionally, the parties and any person present at the request of a party may not disclose or be compelled to disclose mediation communications in any judicial, administrative, or other proceeding.

The two exceptions governing mediator disclosure also apply to the mediating parties.