MEDIATION CONFIDENTIALITY AGREEMENT

PARTIES TO THIS AGREEMENT

This Mediation Confidentiality Agreement ("Agreement") is entered into as of [DATE] by and among all participants in the mediation of the matter referenced below:

Matter: ___________________________________________
Case Number (if applicable): __________________________
Mediation Date(s): __________________________________

Signatories:

Party 1:
Name: _______________________________________________
Role: ☐ Disputant ☐ Counsel ☐ Representative ☐ Other: _______

Party 2:
Name: _______________________________________________
Role: ☐ Disputant ☐ Counsel ☐ Representative ☐ Other: _______

Mediator:
Name: _______________________________________________

Additional Participants:
Name: ___________________________ Role: ______________
Name: ___________________________ Role: ______________
Name: ___________________________ Role: ______________

RECITALS

WHEREAS, the parties have agreed to participate in mediation to attempt to resolve their dispute;

WHEREAS, the success of the mediation process depends upon the ability of all participants to speak candidly and make proposals without fear that their statements will be used against them;

WHEREAS, the parties wish to establish clear confidentiality protections beyond those provided by applicable law;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:

ARTICLE 1: DEFINITIONS

1.1 "Mediation Communication" means any statement, whether oral or written, made by any participant during or in preparation for the mediation, including:
(a) Statements made in joint sessions;
(b) Statements made in private caucuses;
(c) Written submissions, position statements, and summaries;
(d) Settlement proposals, offers, and counteroffers;
(e) Admissions, concessions, and hypothetical proposals;
(f) Pre-mediation communications with the mediator;
(g) Post-mediation follow-up communications.

1.2 "Mediation Document" means any document, record, or tangible item:
(a) Created for the purpose of the mediation;
(b) Disclosed during the mediation that would not otherwise be discoverable;
(c) Notes, summaries, or recordings made during the mediation.

1.3 "Participant" means any person who attends or participates in any aspect of the mediation, including parties, attorneys, representatives, experts, witnesses, insurers, and support persons.

1.4 "Proceeding" means any judicial, administrative, arbitral, or legislative proceeding, including discovery, depositions, trials, hearings, and appeals.

ARTICLE 2: CONFIDENTIALITY OBLIGATIONS

2.1 General Confidentiality

All Participants agree that all Mediation Communications and Mediation Documents are confidential and shall not be disclosed to any person or entity not a party to this Agreement, except as expressly provided herein.

2.2 Specific Prohibitions

No Participant shall:

☐ Disclose any Mediation Communication to any third party
☐ Disclose the content of any settlement proposal, offer, or counteroffer
☐ Disclose the negotiating positions of any party
☐ Disclose the views, opinions, or recommendations expressed by the Mediator
☐ Disclose the reaction of any party to any proposal
☐ Produce any Mediation Document in any Proceeding
☐ Testify about any Mediation Communication in any Proceeding
☐ Issue a subpoena to the Mediator for testimony or documents
☐ Record any portion of the mediation by any means

2.3 Permissible Disclosures

Notwithstanding the foregoing, Participants may disclose:

☐ The fact that a mediation took place
☐ The date(s) of the mediation
☐ The identity of the Mediator
☐ Whether or not a settlement was reached
☐ The terms of a Settlement Agreement, to the extent necessary for enforcement
☐ Information otherwise discoverable independent of the mediation
☐ Information for which all parties provide written consent to disclosure

2.4 Confidentiality of Caucuses

Communications made during private caucuses between the Mediator and any party or group of parties shall be kept confidential by the Mediator and shall not be disclosed to other parties unless the communicating party expressly authorizes such disclosure.

ARTICLE 3: MEDIATION PRIVILEGE

3.1 Assertion of Privilege

All Participants agree that all Mediation Communications are privileged to the maximum extent permitted by applicable law, including but not limited to:

Federal Law:
- Federal Rule of Evidence 408 (Compromise Offers and Negotiations)

Uniform Mediation Act (if applicable):
- UMA Section 4 (Privilege Against Disclosure)
- UMA Section 5 (Waiver and Preclusion of Privilege)
- UMA Section 6 (Exceptions to Privilege)

State Law (specify applicable statute):
___________________________________________________

3.2 Joint Privilege Holders

The mediation privilege belongs jointly to:
(a) All parties to the mediation;
(b) The Mediator;
(c) Nonparty participants, to the extent of their own statements.

3.3 Waiver Requirements

The mediation privilege may be waived only by:
(a) The express written consent of ALL privilege holders; or
(b) Voluntary disclosure in a proceeding by all privilege holders.

No single party may unilaterally waive the privilege.

3.4 Assertion by Mediator

The Mediator may assert the mediation privilege on behalf of all parties and shall do so unless instructed otherwise by unanimous written consent of all parties.

ARTICLE 4: NON-ADMISSIBILITY

4.1 Exclusion from Evidence

No Mediation Communication or Mediation Document shall be admissible for any purpose in any Proceeding, including but not limited to:

☐ As evidence of liability or non-liability
☐ As evidence of the validity or invalidity of any claim or defense
☐ As evidence of the amount of damages
☐ For impeachment purposes
☐ To establish bias, prejudice, or interest of any witness
☐ As an admission against interest
☐ As a prior inconsistent statement
☐ For any other evidentiary purpose

4.2 Settlement Negotiations

All settlement proposals, offers, demands, counteroffers, and related discussions made during the mediation are made for the purpose of settlement negotiations and are inadmissible under Federal Rule of Evidence 408 and equivalent state rules.

4.3 Mediator Testimony

No Participant shall:
(a) Call the Mediator as a witness in any Proceeding;
(b) Subpoena the Mediator for deposition, trial testimony, or document production;
(c) Seek discovery of the Mediator's notes, files, or work product.

The Mediator shall be entitled to assert this Agreement as a basis for declining to testify or produce documents.

ARTICLE 5: EXCEPTIONS

5.1 Statutory Exceptions

This Agreement shall not prohibit disclosure of:

☐ Information indicating abuse or neglect of a child, elder, or dependent adult, which must be reported under mandatory reporting laws

☐ Information indicating a threat of serious bodily harm or death to any person

☐ Information indicating commission of a crime during the mediation

☐ Information required to be disclosed by court order, after the party seeking disclosure has given all other parties reasonable notice and opportunity to object

5.2 Settlement Agreement Exception

A written Settlement Agreement signed by the parties is not subject to confidentiality under this Agreement unless the Settlement Agreement expressly provides for confidentiality.

5.3 Professional Misconduct

Mediation Communications may be disclosed in a proceeding to establish professional misconduct by the Mediator, provided that such disclosure is limited to the communications necessary to address the alleged misconduct.

5.4 Enforcement Proceedings

Mediation Communications may be disclosed to the extent necessary to:
(a) Prove the existence of a Settlement Agreement;
(b) Prove the terms of a Settlement Agreement;
(c) Prove that a settlement was procured by fraud, duress, or undue influence.

ARTICLE 6: DOCUMENT HANDLING

6.1 Marking of Documents

All documents prepared for or exchanged during the mediation shall be marked with the following legend:

"CONFIDENTIAL MEDIATION COMMUNICATION - NOT ADMISSIBLE IN ANY PROCEEDING PURSUANT TO [APPLICABLE STATUTE] AND MEDIATION CONFIDENTIALITY AGREEMENT"

6.2 Return or Destruction

At the conclusion of the mediation:

☐ The Mediator shall return all Mediation Documents to the submitting party
☐ The Mediator shall destroy all Mediation Documents
☐ The Mediator may retain Mediation Documents for [NUMBER] days for administrative purposes, after which they shall be destroyed

Mediator's Document Retention Policy:
___________________________________________________

6.3 Electronic Communications

All electronic communications related to the mediation (emails, text messages, video recordings, etc.) are subject to the same confidentiality protections as other Mediation Communications.

ARTICLE 7: DURATION AND SURVIVAL

7.1 Effective Date

This Agreement shall become effective upon execution by all Participants.

7.2 Survival

The confidentiality and privilege protections of this Agreement shall:

☐ Survive indefinitely
☐ Survive for [NUMBER] years after the conclusion of the mediation
☐ Survive until [SPECIFIC EVENT OR DATE]

7.3 Survival After Death or Dissolution

The obligations under this Agreement shall survive the death of any individual Participant or the dissolution of any entity Participant, and shall be binding on heirs, successors, and assigns.

ARTICLE 8: ENFORCEMENT

8.1 Remedies for Breach

In the event of a breach of this Agreement, the non-breaching parties shall be entitled to:

☐ Injunctive relief to prevent further disclosure
☐ Actual damages resulting from the breach
☐ Attorney's fees and costs incurred in enforcing this Agreement
☐ Other equitable relief as appropriate

8.2 Jurisdiction

Any action to enforce this Agreement shall be brought in [COURT/FORUM] and the parties consent to personal jurisdiction in such forum.

8.3 Governing Law

This Agreement shall be governed by the laws of the State of [STATE], including its mediation confidentiality statutes.

ARTICLE 9: GENERAL PROVISIONS

9.1 Entire Agreement

This Agreement constitutes the entire agreement among the Participants regarding confidentiality of the mediation and supersedes all prior agreements or understandings on this subject.

9.2 Amendments

This Agreement may only be amended by a written instrument signed by all Participants.

9.3 Severability

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

9.4 No Waiver

The failure of any Participant to enforce any provision of this Agreement shall not constitute a waiver of that provision or any other provision.

9.5 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original.

9.6 Electronic Signatures

Electronic signatures shall be deemed valid and binding.

ACKNOWLEDGMENTS

By signing below, each Participant acknowledges and agrees that:

1. I have read and understand this Agreement.

2. I understand that all communications during the mediation are confidential and privileged.

3. I agree not to disclose any Mediation Communication except as permitted by this Agreement.

4. I understand that breach of this Agreement may result in legal liability.

5. I have had the opportunity to consult with legal counsel regarding this Agreement.

SIGNATURES

Party 1

Signature: __________________________________________
Printed Name: _______________________________________
Date: ______________________________________________

Party 1 Counsel

Signature: __________________________________________
Printed Name: _______________________________________
Bar Number: ________________________________________
Date: ______________________________________________

Party 2

Signature: __________________________________________
Printed Name: _______________________________________
Date: ______________________________________________

Party 2 Counsel

Signature: __________________________________________
Printed Name: _______________________________________
Bar Number: ________________________________________
Date: ______________________________________________

Mediator

Signature: __________________________________________
Printed Name: _______________________________________
Date: ______________________________________________

Additional Participants

Signature: __________________________________________
Printed Name: _______________________________________
Role: ______________________________________________
Date: ______________________________________________

Signature: __________________________________________
Printed Name: _______________________________________
Role: ______________________________________________
Date: ______________________________________________

REFERENCE: MEDIATION PRIVILEGE BY JURISDICTION

Uniform Mediation Act Jurisdictions:
District of Columbia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New Jersey, Ohio, South Dakota, Utah, Vermont, Washington

Strong Statutory Protection:
- California: Evidence Code Sections 1115-1128
- Florida: Chapter 44, Florida Statutes
- Texas: Civil Practice & Remedies Code Chapter 154

Note: Always verify current applicable law with qualified legal counsel.

This template is provided for informational purposes only and does not constitute legal advice. Consult with a qualified attorney before use.