How Does Mediation Confidentiality Affect a Hybrid?

One of the most important differences between mediation and arbitration concerns confidentiality and disclosure. An arbitrator must base the decision on information properly available to all the parties in the arbitration proceeding.

For that reason, when the same neutral transitions from mediator to arbitrator, the parties need to understand in advance what mediation information may carry forward into the arbitration and what information remains confidential. In the hybrid proceedings I conduct, the parties acknowledge the applicable mediation-confidentiality waiver before moving forward with arbitration.

Information presented during a general mediation session may then be available for purposes of the arbitration as agreed. Information disclosed only during a private caucus presents a different issue. If one party provides new factual information privately during mediation, that information cannot influence the subsequent arbitration decision unless it is appropriately disclosed to the other side.