Is an Assault Committed During Mediation Protected by Confidentiality?

By: Donald L Swanson

Confidentiality is a central tenet of mediation. Without it, mediation cannot function effectively. So, statutes and court rules provide for high levels of confidentiality in the mediation process.

But what about an assault occurring within the mediation process? Can a mediator testify about the assault? And what if the assault is directed at the mediator?

Commission Opinion

The State of Tennessee has an Alternative Dispute Resolution Commission that gives advisory opinions on mediation-related issues. And the Commission provided such an opinion, back in 2010, on the assault questions mentioned above.

Here’s what the opinion says about an assault during mediation.

Two Questions

The first question answered in the opinion is whether the mediator may provide a statement to law enforcement or be called as a witness, if an assault is committed during mediation against someone other than the mediator.

The second question is whether the mediator may seek a remedy without jeopardizing confidentiality, when the mediator is the victim of an assault during mediation.

Answering the first question

As to the first question, the Commission’s opinion is that the mediator may provide a statement to law enforcement and testify if called upon to be a witness. Here’s why.

• The mediator is not divulging information regarding the underlying dispute but only about collateral issues.

Here’s what the applicable court rule says:

Mediators “shall preserve and maintain the confidentiality of all information obtained during [mediation] and shall not divulge information obtained by them during the course of [mediation] without the consent of the parties, except as otherwise may be required by law.”

Accordingly, any statement or testimony the mediator might give about the assault must be moderated to avoid disclosing information about the underlying dispute (i.e., the mediator may testify only as to the assault).

Answering the Second Question

As to the second question, the mediator, as victim of an assault, may seek a remedy without violating confidentiality. That’s because:

• The mediator is revealing information about collateral issues, only (is not revealing confidential information obtained during the course of the mediation); and
• The mediator’s testimony can be moderated to prevent substantive matters of the mediated case from being disclosed.

Conclusion

Here’s a “Thank you,” to the Tennessee Alternative Dispute Resolution Commission for providing this analysis and assistance under Tennessee law. Here’s guessing the Commission’s analysis will hold true under mediation confidentiality statutes and court rules elsewhere.

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