Mediation and Confidentiality

Confidentiality in mediation can be a tricky subject. If, in the mediation, liability is admitted or a particularly bad fact is disclosed – can it be used at trial? Or, can an incriminating statement made in mediation be used to impeach a witness/party during a late deposition?

Arguably, such “free speech” at a mediation can be prevented from being admitted into evidence through a variety of objections, motions in limine, etc. The admissibility of such statements also may be subject to varying State laws. However, it may be better (and cheaper) for attorneys to prepare clients to avoid this legal scenario altogether. But, avoiding major admissions at mediation may also be important for a psychological reason.

If major admissions are made in mediation, then the admission should be made with tactical precision. To do otherwise may result in the opposing party becoming more entrenched in the battle, not the negotiation. The motivation of the opposition can be altered with major disclosures in its favor – shifting from a spirit of resolution back to a continued pursuit of the jugular.

But, some might question whether parties should enter the mediation process with the intent to withhold information that would assist in all parties’ assessment of their positions. If parties participate in mediation with the premediated intent not to disclose information, have those parties undermined the process of mediation itself?

Weigh in…


New Panelist Heather Wright joins One Mediation

Heather WrightAttorney, Heather C. Wright is the founder and owner of The Wright Firm, LLC, a general civil law practice located in the Buckhead area of Atlanta, Georgia. Founded in 2005, The Wright Firm represents individuals and businesses in personal, corporate, commercial, and civil matters. Heather C. Wright’s current practice includes: corporate representation and consulting, commercial contracts, insurance coverage analysis and disputes, general liability disputes, personal injury, family law, mediation, arbitration, and general civil litigation.

Born in St. Petersburg, Florida, Heather C. Wright graduated from the University of Georgia with a B.B.A. in Finance in 1996, and received her law degree from the Walter F. George School of Law at Mercer University in 1999. Following law school, Ms. Wright was the Staff Attorney to the Honorable Judge James G. Bodiford of the Superior Court of Cobb County, Georgia. After leaving the Court, Ms. Wright practiced with two of Atlanta’s most prestigious litigation law firms before founding The Wright Firm.

In her practice, Ms. Wright represents a variety of individuals and businesses, and in so doing, quickly discovered that most disputes are better resolved through private negotiations between the parties. As such, Ms. Wright typically recommends some form of mediation or arbitration as a method of dispute resolution for her own clients. The Wright Firm currently represents several individuals for claims arising from various practice areas, including claims for anything from personal injury to child support. The Firm also represents several businesses as outside corporate counsel for matters relating to start-ups, commercial litigation, and other matters arising during the entire business life-cycle. In all of these matters, Ms. Wright seeks the best result through zealous advocacy with a mind toward reaching a resolution without unnecessary litigation. Balancing the client’s substantive legal claims and interests with the mundane and costly procedural aspects of the average lawsuit is the most prevalent part of Ms. Wright’s ongoing law practice. As such, she has formed a natural interest in reaching a win-win for the parties to a dispute, even when representing her own clients.