The mediator privilege is extremely important to the mediation process. Without it, participants would have no confidence in the process and information necessary to assist the mediator in resolving a case would not be communicated. It has often been said that the mediation process involves two levels of confidentiality. The first level is when the parties are together in a joint session. While the communication itself at a joint session cannot be used at a later proceeding, the information conveyed has been heard by all and that cannot be changed. However, communications at a separate session consisting of a party, counsel and the mediator are completely confidential, subject to the provisions noted below.
Effective July 1, 2008, New Jersey Evidence Rule 519 was amended. This amended Rule deals with the "Mediator Privilege".
The amended Rule provides that a mediation communication is privileged and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded as provided by law. In a mediation proceeding, the following privileges shall apply:
(1) a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
(2) a mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.
(3) a nonparty participant may refuse to disclose, and may prevent any other person from disclosing, a mediation communication of the nonparty participant.
Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.
Waiver of privilege
The privilege may be waived in a record or orally during a proceeding if it is expressly waived by all parties to the mediation and:
(1) in the case of the privilege of a mediator, it is expressly waived by the mediator;
(2) in the case of the privilege of a nonparty participant, it is expressly waived by the nonparty participant;
(3) a person who discloses or makes a representation about a mediation communication that prejudices another person in a proceeding is precluded from asserting a privilege, but only to the extent necessary for the person prejudiced to respond to the representation or disclosure; and
(4) a person who intentionally uses a mediation to plan, attempt to commit or commit a crime, or to conceal an ongoing crime or ongoing criminal activity is precluded from asserting a privilege.
Lack of privilege
There is no privilege for a mediation communication that is:
(1) in an agreement evidenced by a record signed by all parties to the agreement;
(2) made during a session of a mediation that is open, or is required by law to be open, to the public;
(3) a threat or statement of a plan to inflict bodily injury or commit a crime;
(4) intentionally used to plan a crime, attempt to commit a crime, or to conceal an ongoing crime or ongoing criminal activity;
(5) sought or offered to prove or disprove a claim or complaint filed against a mediator arising out of a mediation;
(6) except as otherwise provided, sought or offered to prove or disprove a claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation;
(7) sought or offered to prove or disprove child abuse or neglect in a proceeding in which the Division of Youth and Family Services in the Department of Human Services is a party, unless the Division of Youth and Family Services participates in the mediation.
(8) considered by a court, administrative agency, or arbitrator, in certain limited proceedings involving a crime or to prove a claim to rescind or reform or a defense to avoid liability on a contract arising out of the mediation, and in which there is a finding, after a hearing in camera, that the party seeking discovery or the proponent of the evidence has shown that the evidence is not otherwise available, that there is a need for the evidence that substantially outweighs the interest in protecting confidentiality.
A mediator may not make a report, assessment, evaluation, recommendation, finding, or other oral or written communication regarding a mediation to a court, administrative agency, or other authority that may make a ruling on the dispute that is the subject of the mediation, except as is noted below. A communication made in violation of subsection a. may not be considered by a court, administrative agency, or arbitrator.
A mediator may disclose:
(1) whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; or
(2) a mediation communication as permitted under other provisions as noted above.
Confidentiality is the key to a successful mediation. Every mediator must be aware of its significance and make sure that all counsel and participants understand and appreciate its role in the mediation process.