Mediation communications are protected, and the source and scope of the protection vary.

Sources. Settlement privilege rules making offers to compromise inadmissible to prove liability; state mediation statutes creating a privilege; court rules in court-annexed programs; and the parties’ own agreement.

Scope. Communications made for the purpose of the mediation, including pre-mediation submissions and post-session communications in many statutes. The mediator generally cannot be compelled to testify.

Exceptions. Evidence otherwise discoverable does not become protected by being used in mediation. Common statutory exceptions cover threats of violence, communications used to plan a crime, claims of professional misconduct arising from the mediation, and proceedings to enforce or set aside the settlement itself.

Enforcement exception. This is the one that surprises parties: to prove that a settlement was reached, and its terms, the communications establishing it are admissible. Statutes commonly require the agreement to be in a signed writing to be enforceable, precisely so that the exception is narrow.

Agreements. A written mediation agreement signed by all participants, including the mediator, defining confidentiality and its exceptions, is standard.

Practical caution. Assume that anything said may be repeated to the other side by the mediator unless it is expressly designated confidential to them.