Mediation can greatly benefit both parties in a divorce. It is understandable that individuals may wish to keep family matters private, so couples may wonder if the information shared during mediation is considered confidential. Luckily, mediation communications are generally privileged and confidential. Exceptions do apply so it is important to understand your rights and the laws surrounding mediation. Work with a Mountainside family and divorce mediation lawyer to learn more and obtain skilled representation today.
What is Mediation?
Divorcing couples can meet with a neutral third party to discuss relevant issues and negotiate the terms of their divorce. This process is known as mediation. It is popular as it allows couples to maintain privacy and control of the outcome of their separation as well as avoid a lengthy and costly trial.
Are the Conversations Had During Mediation Considered Confidential?
Under New Jersey state law, yes, the information discussed during mediation sessions is considered confidential. Given that the information cannot be found elsewhere, the Uniform Mediation Act protects privileged information from being disclosed outside of sessions.
NJ law states that a mediator must:
- Advise all parties of confidentiality rules and provisions
- Reach an agreement with all parties regarding the limits of confidentiality before beginning mediation
- Preserve and maintain the confidentiality of all mediation proceedings
- Conduct the mediation in a way that provides parties with the greatest protection of confidentiality
- Store and dispose of mediation records while maintaining confidentiality
- Not use confidential information outside of the mediation process
Only under certain circumstances can privileged information be disclosed. Otherwise, what happens in mediation stays in mediation.
When Can Confidentiality Be Broken?
There are exceptions to every rule, and confidentiality in mediation is no different. According to New Jersey law, confidentiality of mediation sessions can be broken under certain conditions, the most obvious being when all parties involved consent to the disclosure.
Additionally, if the communication includes information about an individual’s intent to commit a crime or inflict bodily harm or an admission that someone did commit a crime or inflict bodily harm, the information can be disclosed to proper authorities.
In some instances, mediation sessions are considered open to the public or are legally required to be open to the public. Any information shared during one of these sessions can be disclosed and used in future proceedings.
When evidence is necessary to prove or disprove a serious allegation and the information can only be obtained through mediation records, confidentiality may be overruled. This can apply if a claim of misconduct is made against the mediator or if a claim of misconduct or malpractice is made against any party, a nonparty participant, or a party’s legal representative. If there is an accusation of neglect or child abuse the information may also be disclosed.
Besides the above instances, confidential information may only be disclosed if it contains evidence that is vitally important to the extent that the need for it outweighs the need to maintain confidentiality. Speak with an experienced attorney to learn more about your rights regarding privacy and privilege in mediation.
