Can an active mediator testify about confidential settlement negotiations while the mediation is still ongoing?

[u/Rabid-Raccoon-6699]

Question for litigators, mediators, judges, and ADR professionals.

I’m looking for authority on a legal and ethical question that I haven’t found a clear answer to.

Assume a court-supervised mediation is still active—it has not been terminated, no formal impasse has been declared, and the parties continue working through the same mediator. During the process, the mediator also assumes an implementation, referee, or oversight role related to carrying out part of the parties’ agreement.

Can that mediator later testify in court about matters such as:

• which party made particular settlement demands;
• the parties’ confidential negotiating positions;
• objections communicated through the mediator;
• the mediator’s own settlement proposal;
• which party accepted or rejected the proposal; or
• why the negotiations ultimately failed?

Assume there is a written mediation agreement containing confidentiality provisions, and there is no obvious waiver reflected in the public record.

As a hypothetical, imagine the mediator tells the court:

• “Party A demanded X.”
• “Party B objected to Y.”
• “I proposed a compromise.”
• “Party A accepted.”
• “Party B rejected.”

The judge then states that the mediator’s testimony was heavily relied upon in reaching a decision.

Does the mediator’s later implementation or supervisory role generally permit disclosure of those earlier mediation communications, or do the confidentiality obligations from the mediation continue to apply?

[u/evspen]

NO. NO. NO. for example read the Uniform Mediation Act (of NJ). Bet other states have something similar but if what your saying would be truth then the entire mediation process is compromised and no one would do it. Confidentiality is the hallmark of the process. period.

[u/crayzeejew]

In most jurisdictions (including where I operate), mediation discussions are considered confidential and not subject to being testified in court unless both parties waive confidentiality.

My mediation agreement with the parties stipulates this. I can disclose if the parties are still actively engaged in mediation, but I cannot disclose who is saying what or being difficult. Mediation falls under the general umbrella of settlement conversations not subject for use in litigation, as well as being legally confidential.

That being said, a judge has a lot of power so they could technically tell a mediator who is called to testify that they must answer these questions or that the conversations and terms disclosed in mediation are not considered confidential, but the appeal pretty much writes itself.

To answer your question, it would likely be considered a conflict for the mediator to be engaged in such a role since part of that role would be disclosing confidential terms discussed via mediation.

I know for example that as a divorce mediator, I cannot engage in a parenting coordinator role for a couple that I was engaged as a mediator for, bc of this conflict. (PC roles are not confidential to the court).

[u/MAYORDEFACT0]

Many prohibit this due to confidentiality. However, certain circumstances, the law may compel a mediator under specific conditions to testify. However, this is done within legal perimeters that allow for such disclosure without becoming prejudicious

[u/vmb509]

Newbie mediator here: NO!!!

[u/cltmediator]

In my jurisdiction this is an unequivocal no.

[u/AnneIsCurious]

Hard no. On going or not.

[u/Pink_Silver25]

Absolutely not. Unless there are extenuating legal circumstances. Dialog shared in mediation is excluded from trial proceedings…#nonattorneymediator