Virtual Mediation and Confidentiality!
Updated: Aug 4, 2021
Some courts have already disregarded the confidentiality rules of other states. This includes mediation confidentiality agreements and they have ordered clients to testify about what happened at mediation. Lawyers face malpractice and ethical risks if things go awry after they have had clients sign so-called "mediation confidentiality agreements.” This is because conflicts-of-law principles allow courts to disregard the privilege statutes of other states as well as confidentiality agreements and order clients to testify.
Some courts have already done so and more will follow, particularly because in online mediations with participants sprinkled across the country it is harder to determine which state's privilege statute applies in the first place. You do not want to be the lawyer who has a court order for your client to testify to what happened at a mediation after you promised them it would never happen. It’s wise when doing a virtual mediation that has participants from many states to first inquire into that state’s idea of "confidentiality.