Confidentiality is absolutely one of the most important features of mediation. If they are going to be candid with the mediator about settlement positions, strategies and other issues, litigants and their advocates must be able to trust the confidentiality of the process.
In a recent mediation, I experienced a situation in which the litigants were innocently sharing – with each other – information by text, without my knowledge or their attorneys’. I have mediated cases in which lawyers texted one another during the mediation, but this case, where the actual parties were in direct contact with each other, was a first for me.
Confidentiality should be stressed at the beginning of each mediation, so that all participants understand that texting and emailing information to others can impede, perhaps fatally, the resolution of their case.
In preparing your clients for mediation, remember to advise them of the importance of confidentiality and communicating through proper channels. That seems obvious – so much so that it is easily overlooked, and this reminder is very important in the culture in which we function.