Is Mediation Private?

Mediation is private in two separate ways. First, what you say and share in mediation is generally confidential and protected from use against you if your case later goes to court, subject to the exceptions below. Second, mediation can keep many details of your marriage, finances and business out of the public court file by reducing contested filings. Both protections matter and they work differently.

What does confidential mean in mediation?

Confidential means that what happens in mediation stays in mediation, subject to the exceptions described below. Arizona law makes the mediation process confidential, and the communications made, the materials created for or used in mediation, and the acts that occur during mediation cannot be discovered or admitted into evidence. A.R.S. § 12-2238(B). If you propose a settlement figure, concede a point, or explain why a particular asset matters to you, your spouse cannot later hold that up in front of a judge.

The mediator is protected as well. With narrow exceptions, a mediator cannot be subpoenaed to testify or to produce evidence about anything that happened in the mediation. A.R.S. § 12-2238(C). You can speak candidly with the mediator because the mediator generally cannot be compelled to testify about the mediation, subject to the statutory exceptions.

Are there exceptions to confidentiality?

There are few exceptions and they are very narrow. Courts favor the confidentiality of mediations. Information from a mediation can be disclosed when all of the parties agree, when a statute requires the disclosure, when it is needed to enforce an agreement to mediate, when a party brings a claim against the mediator, or when a court-appointed mediator reports suspected abuse or neglect of a child or vulnerable adult. A.R.S. § 12-2238(B)(1)–(5). Threatened or actual violence during a mediation is not privileged. A.R.S. § 12-2238(E). All of these circumstances are extremely rare.

Documents that exist on their own do not become secret simply because you bring them to mediation. Bank statements, tax returns, business records, and account histories can still be obtained through the normal court process. A.R.S. § 12-2238(C). The same documents that you are required to disclose in the litigation process are the same ones your spouse is entitled to during the mediation. Your spouse remains entitled to full financial disclosure, and you remain entitled to the same from your spouse. What mediation protects is everything around those documents: your offers, your reasoning, and your willingness to compromise. And the documents themselves are nowhere in a court file since you did not use them in any trial exhibits.

How does mediation keep your divorce out of the public record?

Mediation can reduce what enters the public court record because negotiations happen outside the courthouse and the litigation process. Arizona family court proceedings are presumptively open to the public. In a contested divorce, each side files petitions, motions, responses, financial affidavits, exhibits, and disclosure disputes, and a trial adds sworn testimony and all the actual data and text in those documents. Understand that even though disclosures are required, they are never filed in the court record. They become part of the court record when you use them as exhibits in a trial. All of that becomes part of a court file that anyone can request. Business valuations, account balances, spending habits, bank statements, credit card statements, retirement accounts, stocks, text messages, emails, photographs, medical records, and accusations about the marriage can all end up in the court file.

When you resolve your divorce in mediation, the court file will only include the required divorce documents, the initial pleadings and the settlement documents such as the decree, parenting plan and the property settlement agreement. What gets filed is your final agreement and the paperwork the court requires to approve it rather than your entire case outlined in your pre-trial statement and exhibits. The terms of a signed mediated agreement are not confidential when they are needed to obtain court approval or to enforce the agreement. A.R.S. § 12-2238(D). But that agreement does not have to include details of finances. That same subsection allows either of you to ask that all or part of the agreement be provided to the court under seal, with a request for orders protecting its confidentiality. A.R.S. § 12-2238(D). The court decides whether to grant that request. It is not often sealed so we can leave pertinent sensitive data out of the mediation agreement. We leave in enough for it to be enforceable but not enough for the public to know what is going on.

Can a court seal your divorce records instead?

Yes, a court can seal records, but it rarely does. Arizona courts are reluctant to seal family court records, even for people whose names are widely recognized. Before sealing a record, a judge must find that an overriding interest outweighs the public’s right of access, that the interest is likely to be harmed without sealing, and that no less restrictive option will protect it. In our experience, courts are far more willing to protect information about children than information about money. A request to seal the details of a business, an investment portfolio, or a compensation package usually does not meet that standard.

Litigation can therefore place the value of your business, your client and vendor relationships, your income, your investments, and your family’s spending into a public file, and you may not be able to take any of it back out. If you do not want the world to know about your business mediation is the path for your divorce. There is an old saying about not airing your dirty laundry in public. And even though your laundry is not dirty, do you want the world to have access to it?

Who benefits most from the privacy of mediation?

Both spouses and the entire family can benefit from mediation privacy. Mediation is especially worth considering if any of the following describes you or your spouse:

• You own or co-own a business, and you do not want its value, profit margins, debts, customers, vendors, pricing, or partners discussed in a public file.
• You are a physician, dentist, attorney, accountant, engineer, or other licensed professional whose practice or book of business will be valued in the divorce. Some of your proprietary information can be sealed but that is judicial discretion.
• You hold stock options, restricted stock, deferred compensation, bonuses, commissions, or profit-sharing interests that reveal what your employer pays.
• You have real estate holdings, rental properties, investment accounts, retirement accounts, trusts, or inheritances that you would rather not have listed for public view.
• You are an executive, business owner, elected official, public figure, or community leader whose clients, investors, employees, or constituents may go looking.
• You are bound by a nondisclosure agreement, partnership agreement, or operating agreement that restricts what can be shared about your company.
• You have children and you would prefer that the public doesn’t know about the family details describing your marriage and money.

What if mediation does not resolve everything?

Mediation does not have to resolve every issue although it usually does. Mediation communications generally remain confidential if you later go to court on the issues that are left, subject to the statutory exceptions described above. A.R.S. § 12-2238(B). The issues you do resolve can be written into a binding Rule 69 agreement signed by both of you, which narrows what a judge has to decide and what ends up in the court file. Many couples also return to mediation after a break, once they have gathered more information or had time to consider an offer.

Talk to Tali

Best Law Firm offers mediation, divorce coaching, document preparation, limited scope representation, attorney review, Rule 69 agreements, decree drafting and the Summary Consent Decree Process so you can choose the help you need and keep your divorce as private as possible. Tali handles every new client consultation. You can schedule your consultation with Tali at bestlawaz.com/talk-to-tali.