Is Mediation Privileged?
Despite Utah statute (§78B-10-104, Utah Code) claiming “mediation communication is privileged … and is not subject to discovery or admissible in evidence in a proceeding…”, at least one commissioner and a couple of judges disagree.
The case was a divorce; the parties mediated and a commissioner held a phone conference with them the next day. Counsel for “A” claimed there was no mediation due to actions by “B”. B’s attorney objected, and the commissioner not only allowed A to continue his wrongful representations about what happened in mediation, but also asked questions about what happened in the mediation. The commissioner then ruled that mediation failed due to B’s attorney’s actions. And then, a presiding and an associate presiding judge, in deference to the commissioner, decided that the commissioner’s actions and inquiries were proper.
So all mediators, attorneys, and participants beware. Contrary to statute and representations of mediators and attorneys, some members of the judiciary violate statute, not only by allowing representations of what happened in a mediation in as argument or evidence, but actively make inquiry into communications made in, or around, mediation.