Confidentially is assured in formal mediation. In California, in both Federal and State proceedings, case law, (common law) and statue protect parties from disclosure of their discussions in formal mediation. Confidentially is also assured in mediation concerning matters which have not yet proceeded to litigation.
This is a significant benefit to the parties. In general this means that whatever is said in mediation cannot be legally repeated in Court or to any other legal authority. That means that offers made, counter offers proffered, as well as topics discussed cannot be revealed. More importantly, it means that personal issues and topics can be dealt with honestly and directly. It also means that any personal admissions made in the mediation session cannot be disclosed.
Here is a hypothetical case study as an example of how this might work in practice:
Say for example a married couple with children is going through a breakup. In this hypothetical example, let’s say they both use occasional recreational drugs, and perhaps one or both drink alcohol more than others might say is prudent, or say both husband and wife have lost their temper and acted out with anger with each other and with the kids in ways that are not “over the line” but might be “questionable”.
These issues and many more, are explosive. They can be dealt with, and need to be dealt with, but there is no telling how they might impact the rights of the parties if they were revealed in open Court. An accusation by one spouse against the other may result in both parties escalating the accusations to the point where both parties are negatively impacted.
This is where private formal mediation can help. A session with a Court mediator is not true mediation and the same confidentiality rules do not apply. The hypothetical couple represented above might decide to avoid this exposure risk and hire a private mediation service to have a safe environment to talk through their mutual concerns as parents. If successful, they then present a completed co-parenting plan, with custody and visitation all resolved, to the Court as a Stipulation and Order.
A number of years ago, I mediated a divorce case when one spouse had a good job with a very high security clearance requirement. This was long before homosexuality was a commonly accepted phenomenon. The couple realized that the security clearance, and thus the job, was at risk if it came out that homosexuality was an issue. In our confidential mediation session, all aspects of this were discussed at length, in strict confidence. We covered topics including how and what to tell the children, complicated parenting issues related to overnight visitation with the children and so forth. No one had any need to know about the personal sex life of one of the spouses and so everything was resolved in private mediation.