Mediation is a powerful and popular tool that can be used during separation and divorce. One of the selling points is that the information discussed in mediation is generally kept confidential. For more information on the pros and cons of mediation, speak to a Sparta family law mediation attorney.
What is Mediation?
Mediation is a form of dispute resolution often used in divorces and business cases. It allows the parties involved to work things out between themselves and come to an agreement without going to trial. During divorce mediation, the couple will meet with a neutral third party who acts as the mediator. The mediator will guide the parties through negotiations and help keep the conversation productive and cordial.
Mediation is popular in divorcing couples as it gives them the opportunity to control the outcome of their property distribution, alimony, child custody, and child support. They can avoid costly litigation and ensure the details of their divorce are kept private. But just how private are mediation sessions?
Is Everything Discussed in Mediation Kept Confidential?
Yes, the information discussed in mediation is generally kept confidential. This means that the topics and things said during mediation sessions cannot be discussed outside of mediation unless all parties involved agree. The Uniform Mediation Act, N.J.S.A. 2A:23C-1 sets the guidelines for privilege and confidentiality during mediation.
Under New Jersey law, the information disclosed during mediation, given that it is not otherwise obtainable, is confidential and cannot be used in a future legal proceeding unless all parties give consent. Any records of the sessions must be stored in a confidential file as established in the Uniform Mediation Act.
Can Confidential Mediation Information Ever Be Disclosed?
Although most information discussed in mediation in NJ is considered confidential, there are some exceptions. Under NJ state law, the rule of privilege and confidentiality may be overridden when:
- All parties sign an agreement to disclose the information
- Information about the communications could prevent harm to others
- Disclosure is required by law, as in if there is a reasonable belief that a participant has committed or may commit bodily harm or a crime
- The communication is made during a session that is open or is required by law to be open to the public
- The information is necessary to prove or disprove a claim against the mediator
- The information is necessary to prove or disprove a claim of professional misconduct or malpractice against any party, a nonparty participant, or a representative of any party
- The information is necessary to prove or disprove an allegation of child abuse or neglect
- The communication contains evidence that is not otherwise available and there is a need for the evidence that substantially outweighs the interest in protecting confidentiality
If mediation fails and the divorce goes to court, the information discussed may be relevant in a trial. Under the above conditions, the confidential information may be legally required to be disclosed in court. Work with an experienced lawyer to learn more about your options and rights during mediation.
