Mediation And The Right To Privacy: Confidentiality, The USA PATRIOT Act, And Us
Susan Oberman 06/22/2009
This article addresses the offer of confidentiality in mediation which ultimately references the constitutional and common law right of privacy, and makes confidentiality in mediation one of the rare instances in which citizens can exercise this right. However, rules of evidence can override confidentiality, in reality it cannot be guaranteed. The USA PATRIOT Act Section 215 places promises of confidentiality in even greater jeopardy. The legal boundaries around what can be kept confidential make what mediators say about it a key example of how mediation is not an alternative to, but an option within, the legal system. As a critical aspect of supporting party self-determination, mediators need to fully understand and explain confidentiality.

Carrie Prejean And Mediation Confidentiality
Steve Mehta 11/16/2009
The saga of Carrie Prejean, the Miss California contestant for the Miss USA pageant who came out against gay marriage, had a picture of her breasts “accidentally” exposed during a photo shoot, and who sued the Pageant, which then countersued to get back their money for her breast implants, and who then settled the case when a sex tape was discovered of her, is still in the news. But this time, she took on Larry “Inappropriate” King for the ultimate fight about mediation confidentiality.

Prejean, Larry King And Hard Facts Making Bad Mediation Confidentiality Law
Victoria Pynchon 11/16/2009
While reading this opinion (or simply this post) think about Carrie Prejean's accusation that Larry King's question to her -- "why did you settle" --was "completely inappropriate" because (presumably) her thought process was protected by mediation confidentiality.

What’s In Your Agreement To Mediate? Confirming Confidentiality Before The Mediation Starts
Diane J. Levin 10/12/2009
Confidentiality stands as a cornerstone of mediation practice. It encourages the resolution of disputes by allowing those in conflict to candidly discuss the issues they face, secure in the knowledge that what they say in the mediator’s presence cannot be held against them later. In pop culture parlance, what happens in Vegas, stays in Vegas.

The Uniform Mediation Act And Confidentiality
Holly Hayes Bovio 10/05/2009
As discussed in a previous post, an attempt has been made to explore confidentiality in the Uniform Mediation Act (UMA) and provide an updated list of the states who have implemented the Act, those where legislation is pending, states who have rejected the act and those who have chosen to adopt similar bills.

Mediation Confidentiality
Holly Hayes Bovio 09/21/2009
A recent post on the “bad faith mediation” section of Texas HB 2256 has prompted comments and discussion regarding the confidentiality of mediation.

Another Malpractice Trap For The Unwary Mediation Advocate: Draft Your Own Confidentiality Agreement
Victoria Pynchon 09/21/2009
As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn. There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi).

Confidentiality in Collaborative Cases After Thottam
Elizabeth Bader 06/08/2009
The recent case of Estate of Thottam (2008) 165 Cal.App.4th 1331, 81 Cal.Rptr. 856, has many mediators and collaborative practitioners worried about confidentiality in California. In Thottam, the Court of Appeal found that a mediator’s confidentiality agreement could reasonably be interpreted as a waiver of confidentiality and opened up a complex probate case to potentially expensive litigation.

Recent Confidentiality Decisions ... In a Nutshell
Jeffrey Krivis, Mariam Zadeh 12/01/2008
Jeff Krivis and Mariam Zadeh here offer a summary of decisions from across the country that has impacted the confidentiality protections afforded parties in a mediation.

Recent Confidentiality Decisions In a Nutshell
Jeffrey Krivis, Mariam Zadeh 09/23/2008
In light of the extensive blogosphere coverage that mediation confidentiality has received in recent months, we will keep this post short and sweet.  The last year has yielded a host of decisions from across the country that has impacted the confidentiality protections afforded parties to a mediation.  We have summarized these cases with their respective citations so that the information is available and encapsulated in one area for easy reference. Estate of Thottam, Case No. B196933 (Cal....

California Court Side Steps Mediation Confidentiality and Stretches to Find a Settlement Agreement
Elizabeth Moreno 09/08/2008
Counsel can no longer assume that anything that happens, especially written notes, is protected by the confidentiality provision. Even if the parties sign the confidentiality agreement at the beginning of mediation that does not mean that everything is confidential, aside from a Settlement Agreement signed by the parties.

What Can You Do if Someone Breaches a Mediation Confidentiality Agreement?
Victoria Pynchon 09/02/2008
(image from and links to HOA Issues Solved in Five Steps) I've recently been covering mediation confidentiality from an attorney's point of view.  Because my statistics page reminds me that clients also read this blog, I sometimes direct posts to the people with the problem -- clients.   This morning I notice that someone landed on my site seeking an answer to this question: What can you do if your HOA Board member breaks the mediation confidentiality...

A Loss For Mediation Confidentiality
Phyllis Pollack 09/02/2008
       An interesting decision was issued the other week by the Second District of the California Court of Appeal on mediation confidentiality. Reading it left me with the impression that the appellate panel was result oriented or using “legal realism” rather than simply applying the governing law to the facts to lead it to the logical, mechanical and deliberative conclusion. (“formalist approach”.) (See “Blinking On The Bench: How Judges Decide Cases” – February 28, 2008 blog.)        In the...

The Trouble with Thottam: Mediation Confidentiality At Risk
Victoria Pynchon 08/18/2008
UPDATE:  See the analysis of Thottam at May it Please the Court, noting that the "big print giveth and the small print taketh away." Before further discussing the problems created by the Thottam holding, I'm providing a "brief" of the case about which I ranted and raved earlier here today.   THE FACTS:  A mediation confidentiality agreement entered into by the parties in Thottam provided that “all matters discussed,...

The Never Ending Story: Mediation Confidentiality
Phyllis Pollack 08/11/2008
       On October 23, 2006, I wrote a blog entitled “When Public Policies Collide: Something to Think About” in which I discussed the appellate decision in Simmons v. Ghaderi.  That  court determined that the lack of consent by Dr. Ghaderi was more important than honoring and upholding mediation confidentiality. It held that California Evidence Code §1119 (providing for confidentiality in mediations) should not be applied such that the trial court could take evidence of what occurred during the ...