Are confidential settlement agreements discoverable?

Even where settlements are confidential, parties will often agree that the terms of settlement can be disclosed to party's attorneys, accountants, insurance companies and other professional advisors, as necessary for business purposes.

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Montana
Mediation Agreement between Private Parties

Montana Mediation Agreement between Private Parties

Category:

Arbitration and Mediation - Contracts

State:

Multi-State

Control #:

US-02296BG

Format:

Instant download

Description

Mediation is a non-adversarial method of alternative dispute resolution (ADR) in which a neutral third party helps resolve a dispute. The mediator does not have the power to render a decision on the matter or order an outcome. If a satisfactory resolution cannot be reached, the parties can pursue a lawsuit.

Mediation is often used to help a divorcing or divorced couple work out their differences concerning alimony, child support, custody, visitation and division of property. Some lawyers and mental health professionals employ mediation as part of their practice. Some states require mediation in custody and visitation disputes. Other states allow courts to order mediation and a few states have started using mediation to resolve financial issues as well.

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FAQ

As noted above, the heart of the mediation privilege is confidentiality. Essentially, by statute, the only statement or writing made in connection with mediation which can be disclosed without the express consent of both parties is the agreement reached during the mediation itself.

Even where settlements are confidential, parties will often agree that the terms of settlement can be disclosed to party's attorneys, accountants, insurance companies and other professional advisors, as necessary for business purposes.

In many cases, including a confidentiality clause is a necessity in a settlement agreement. When these clauses are included, the parties, as well as their attorneys, are not allowed to disclose how the agreement was reached.

Except as required by law, a mediator must not disclose information revealed in confidence during such separate communications unless authorized to do so by the participant or participants who revealed the information.

The non-binding nature of mediation means also that a decision cannot be imposed on the parties. In order for any settlement to be concluded, the parties must voluntarily agree to accept it. Unlike a judge or an arbitrator, therefore, the mediator is not a decision-maker.

As a general rule, mediation communications are privileged and not subject to discovery or admissible in evidence in a proceeding unless waived by all the parties to a mediation, as well as the mediator and the third party participants.

Mediation is a confidential procedure. Confidentiality serves to encourage frankness and openness in the process by assuring the parties that any admissions, proposals or offers for settlement will not have any consequences beyond the mediation process.

A caucus is a private meeting during which the mediator talks with each party separately about the dispute.