Mediation is a popular dispute-resolution technique used by couples going through a divorce. It involves the separating parties meeting with a neutral mediator who helps them negotiate topics like child custody, property distribution, alimony, and more. Divorce can be an emotional time and many couples are concerned with protecting their privacy. Generally, the information discussed during mediation is kept confidential. However, there are exceptions to every rule. For more information and representation during your divorce, contact a skilled Farmington Hills divorce lawyer today.
Are the Things I Discuss in Mediation Kept Confidential?
The answer to this question is “sort of.” This may be confusing to an individual who is seriously questioning the confidentiality of their mediation sessions, but the answer is not so black and white.
In Michigan Supreme Court case Tyler v Findling, the state’s Supreme Court upheld the protections of MCR 2.412(C), a code covering the topic of mediation communications. This court rule establishes that communications in mediation sessions are confidential, neither discoverable nor admissible in a court proceeding, and not to be disclosed to anyone outside of the mediation participants.
While the above protections surrounding mediation communications are true and legally enforceable, it is difficult to say that everything discussed during mediation will be kept completely confidential. There are certain scenarios where one or more topics may be brought into a lawsuit or proceeding if mediation fails.
Can Mediation Confidentiality Ever Be Broken?
Although mediation is generally confidential, there are instances when it may be legally necessary to breach confidentiality and disclose information in litigation. Mediation communications may be disclosed outside of sessions under the following circumstances.
- A court rule requires the disclosure
- All parties agree in writing to disclose the information
- The information is in the mediator’s report
- The information includes a threat or plan to inflict bodily injury, commit a crime, or conceal a crime
- The information includes a claim of abuse or neglect of a child or other protected individual
- The information includes a claim of malpractice
- The information includes a claim of misconduct
- The information includes certain evidence and the need for said evidence substantially outweighs the interest in protecting confidentiality
Generally, if there is a written and signed agreement by all parties involved establishing confidentiality, the protections will be upheld. However, if there is not and an issue becomes relevant outside of mediation then the information may be considered admissible in a divorce proceeding. When divorce mediation is successful and the couple agrees on all topics there is no need for litigation or further legal action, so the point is moot. However, if the parties cannot agree on all relevant topics the issue of confidentiality may come into play.
Should I Hire an Attorney?
It is always recommended to hire legal counsel during a separation or divorce. It is important to understand your legal options and ensure your rights are protected throughout the process. Reach out to a skilled attorney to learn more about your options during divorce and obtain skilled representation today.