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Vol. 2007-05 | May, 2007

Mediation; Communications Confidential

Communications between parties to a mediation proceeding and the Mediator, are confidential, as a matter of law. A recent case decision affirmed this important principle, stated in Ohio’s Revised Code:

{¶ 11} R.C. 2317.023 provides in pertinent part: “(A) As used in this section:

  1. `Mediation’ means a nonbinding process for the resolution of a dispute in which both of the following apply:
    • A person who is not a party to the dispute serves as mediator to assist the parties to the dispute in negotiating contested issues.
    • A court, administrative agency, not-for-profit community mediation provider, or other public body appoints the mediator or refers the dispute to the mediator, or the parties, engage the mediator.
  2. `Mediation communication’ means a communication made in the course of and relating to the subject matter of a mediation.
  3. A mediation communication is confidential. Except as provided in division (C) of this section, no person shall disclose a ediation communication in a civil proceeding or in an administrative proceeding.” See, also, State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 1998-Ohio-271.

The statute also provides an important but limited exception to disclosure: {¶ 15} R.C. 2317.023(C) provides: “Division (B) of this section does not apply in the following circumstances: (2) To the disclosure by a person other than the mediator of a mediation communication made by a person other than the mediator if all parties to the mediation and the mediator consent to the disclosure;

4. To the disclosure of a mediation communication if a court, after a hearing, determines that the disclosure does not circumvent Evidence Rule 408, that the disclosure is necessary in the particular case to prevent a manifest injustice, and that the necessity for disclosure is of sufficient magnitude to outweigh the importance of protecting the general requirement of confidentiality in mediation proceedings.” O’Donnell Constr. Co. v. Stewart, 2006-Ohio-1838.

“If I had thought about it, I wouldn’t have done the experiment. The literature was full of examples that said you can’t do this.”

Spencer Silver on the work that led to the unique adhesives for 3-M “Post-It” Notepads.

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.