The Mediator’s Duty of Confidentiality – When Does It Attach?

By Dauna Bartley

A recent social discussion with a few mediators raised an interesting question that comes up often. When you are contacted to mediate a case, at what point does your obligation to maintain confidentiality attach? Is it when the parties sign and file a designation of mediator? When they sign your mediation agreement? When everyone shows up on the day of the mediated settlement conference?

Answer: Confidentiality attaches immediately, the moment you are contacted in your capacity as a mediator.

This inquiry falls under the “Standards of Professional Conduct for Mediators,” adopted by the North Carolina Supreme Court on January 23, 2020. The current version, effective June 10, 2020, is available online here.

Standard 3 addresses the obligation of confidentiality and states, in pertinent part:

A mediator shall, subject to exceptions set forth below, maintain the confidentiality of all information obtained within the mediation process.

  1. A mediator shall not disclose to any nonparticipant, directly or indirectly, any information communicated to the mediator by a participant within the mediation process, whether the information is obtained before, during, or after the mediated settlement conference. . . . ,
  2. A mediator shall not disclose to any participant, directly or indirectly, any information communicated to the mediator in confidence by any other participant in the mediation process, whether the information is obtained before, during, or after the mediated settlement conference, unless the other participant gives the mediator permission to do so. A mediator may encourage a participant to permit disclosure but, absent permission, the mediator shall not disclose the information.
  3. A mediator shall not disclose to court officials or staff any information communicated to the mediator by a participant within the mediation process, whether before, during, or after the mediated settlement conference, including correspondence or communications regarding scheduling or attendance, except as required to complete a report of mediator form . . . .

Thus, Standard 3(a-c) provides the mediator may not disclose any information communicated to the mediator by a participant within the mediation process, whether the information is obtained before, during, or after the settlement conference. From the very outset, even before being formally designated as mediator, she is in the “mediation process.”  Confidentiality attaches from that first telephone call or email.

The “Standards of Professional Conduct for Mediators” govern the conduct of mediators, rather than governing the conduct of the parties or cases. When you are analyzing your responsibilities as a mediator, the Standards are a great place to start.