It will be a slow and deliberate process. The language of the act establishes a privilege of confidentiality for mediators and disputants that prohibits what is said during mediation from being used in civil, juvenile, criminal misdemeanor, arbitration or administrative proceedings. Some exceptions to confidentiality have been drafted and others have been offered for discussion. For example, when sides in mediation reach an agreement, the agreement can be made public. Other exemptions concern causing injury to a person, planning a crime, protecting a child, etc.
None yet includes exemptions for matters of public policy or public entities.
Scott Hughes, law professor at the University of Alabama School of Law and an observer at the Indianapolis meeting, said he believes that confidentiality is not needed and that it carries a social and legal cost. And to me, the social cost outweighs the gain from mediation. Hughes finds no evidence to suggest that settlement rates are higher in comparing mediation and negotiation between parties in litigation. Meditation appears to settle disputes that would probably be settled by negotiation before going to court, said Hughes. Mediation confidentiality raises the bar over the ordinary practice of negotiation in litigation.