A recent case in California has upheld the concept of confidentiality within the context of mediation. In Wimsatt v. Superior Court (Kausch), the Appellate Division ruled that a client could not obtain and use their attorney’s mediation briefs (along with emails pertaining to the mediation) to pursue a malpractice claim against the attorney. In general, all communications relating to a mediation are confidential and cannot be used outside of mediation for any purpose (the main exceptions are the commission or contemplation of a crime or when the confidentiality would violate public policy or interest).
I encourage all of my clients to invoke their confidentiality rights in mediation. Those rights were put into place to encourage parties to be as open as possible, so that paties can come to a resolution.