Mediators often open mediation sessions stressing the importance of confidentiality. And so they should. Many states have adopted variations of the Model Uniform Mediation Act which statutorily protect communications shared during mediation. In New Jersey there is also a landmark Supreme Court decision,State of New Jersey v Carl Williams,184 N.J. 432, which champions confidentiality as the cornerstone of mediation.
The mediator’s vigilance as the protector of the process; however, must extend beyond the introductory statements. For most mediation participants, given the prevalence of smart phones and other portable technology, the ability to record privileged mediation communications or text someone outside the process their confidential settlement offers is literally at their fingertips. Socially desensitized to tapping digits, mediators can easily miss a confidentiality breach in full view. Trained in observing the most subtle nonverbal cues, mediators must extend such mindfulness to more obvious “phony” situations.