The Commission advises that the Mediator should not give the affidavit nor should he provide information at a deposition. Providing such information is a violation of the Standards of Professional Conduct for Mediators. Standard III.A. prohibits the communication of any information and does not distinguish among the opening session, caucuses or any other stage in the mediation process. Moreover, Standard III.A. does not provide for any exceptions to confidentiality beyond the statutory duty to report certain information. There is no exception for instances where the parties agree to the affidavit or deposition.
Confidentiality is essential to the success of mediation.
Absent a statutory duty to disclose information, the Standards obligate mediators to protect and foster confidentiality. The Commission publishes a quarterly newletter jointly with the NCBA's Dispute Resolution Section. If you are not routinely receiving this newsletter, please contact the Commission's office. Program brochures, which can be shared with parties or attorneys, are also available through the Commission's office.