Why Are Mediation and Conciliation Confidential?

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Mediation and conciliation are two of the most common methods of alternative dispute resolution ("ADR"). In each of these voluntary processes, a third party neutral with no stake in the case tries to facilitate a compromise or agreement between parties who are in dispute. The mediator, or conciliator, will spend time with the parties and work with them, and their counsel, to assess each of their goals and help them move towards an agreement that is fair and reasonable and something each of the parties can live with. 

The difference between the two is that a conciliator, unlike a mediator, will actually weigh in on the merits of the case, and candidly discuss the strengths and weaknesses of each party's positions. By putting a thumb on the scale, a conciliator can use that leverage - either privately with one party or collectively with everyone - to try to moderate what may be overreaching postures in the context of a fair and reasonable agreement. A mediator, by contrast, withholds his or her personal opinion and helps the parties identify mutual goals and leads the mediation session from that context.

The other difference between mediation and conciliation is that the former is confidential by operation of law, while the latter is not. Mediation is confidential pursuant to M.G.L. c. 233 s. 32C. This statute mandates confidentiality of all discussions that take place in a mediation, such that, if the case does not settle at or soon after the mediation session, terms or settlement postures cannot be repeated later in the context of the litigation. The mediator's notes and impressions also remain confidential.

The reason for confidentiality in mediation sessions is much like the reason for confidentiality in settlement discussions. In order to facilitate a settlement, a party that is free to be candid and participate in negotiations in good faith will not feel constrained by any concerns that their offers or counteroffers will later be used as leverage in litigation. Who would agree to mediate if, for example, their opponent could say at a trial that the party who made the offer was willing to settle for X? No one would agree to mediate (or even make a settlement offer).

Conciliation does not fall under the umbrella of the confidentiality statute, even though its goals and processes are functionally the same as mediation. Despite this shortcoming in the statute, it is generally understood that conciliation is (or should be) confidential, and any competent conciliator will have a conciliation agreement that both parties sign that includes a provision that the conciliation process is confidential. If it is does not include such a provision, a party who wants the process to succeed should request that the provision be included. 

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