WHY THE RULE?

Here’s the Rule included on the Middlesex Mediation website:

…[A]ll parties are entitled to a clean slate when they come to Middlesex Mediation. Previous settlement discussions are treated as privileged unless the parties agree otherwise.

Have you been in a mediation when the first question the mediator asks is: “Where are you in settlement?”  This is a perfectly sensible question. An answer would give the mediator a starting point for further negotiations. Often, a party or counsel freely explains where settlement is or isn’t. Afterall, mediation is confidential.

Even though mediation is confidential, the privilege associated with pre-existing settlement conversations is not automatically waived.  

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