Rule 99.11.Confidentiality.

Current through June 18, 2026 · Last verified July 9, 2026

In one sentenceRule 99.11 makes mediation conferences closed and confidential in Kentucky, barring recordings, treating communications as privileged settlement negotiations under KRE 408, and setting narrow exceptions for abuse reporting, enforcement proceedings, and claims against the mediator.

Full Text of Rule 99.11

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1. Unless agreed by the parties and the mediator, mediation conferences shall be closed to all persons other than the parties and their legal representatives.

2. No part of mediation may be recorded without express agreement of the parties, counsel and the mediator.

3. Mediation shall be regarded as settlement negotiations for purposes of KRE 408.

4. For purposes of this rule, all mediation communications, including documents, communicated during the mediation process are both privileged and confidential. For this purpose, the mediation process includes any communications with the mediator in advance of, during and after the mediation conference. They are not subject to disclosure through discovery or any other process and are not admissible into evidence in any judicial or administrative proceeding. However, evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its disclosure or use during the mediation.

5. A mediator shall not disclose, directly or indirectly, to any non- participant any information communicated to the mediator by a participant within the mediation process.

6. It is the responsibility of each party and/or counsel to explicitly advise the mediator precisely what information communicated to the mediator is communicated in confidence so that it will not be divulged to other mediation participants.

7. A mediator shall not disclose, directly or indirectly, to any participant in the mediation any information communicated to the mediator in confidence unless the mediator is given permission by the communicating participant to do so. A mediator may encourage a participant to permit disclosure, but absent such permission, the mediator shall not disclose.

8. Unless otherwise allowed under CR 99 or CR 100, a mediator shall not disclose to, nor discuss with, court officials or staff any information communicated to the mediator by any participant within the mediation process, including correspondence or communications regarding scheduling or attendance, nor may the mediator comment about the mediation negotiations in any respect.

9. Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matters shall be considered confidential and privileged in nature except on order of the court for good cause shown. This privilege and immunity reside in the mediator and may not be waived by the parties.

10. Nothing in this rule prohibits a mediator from reporting abuse according to KRS 209.030, KRS 620.030, or other applicable law.

11. Any executed settlement document shall not be deemed privileged and confidential as provided in this rule unless the parties explicitly stipulate that the terms of settlement are to remain confidential. In any event, however, should the settlement agreement be required as proof in a proceeding to enforce the terms of settlement, such settlement agreement shall no longer have the privilege of confidentiality and may be introduced into evidence.

12. Notwithstanding any other provision of this CR 99.11, a mediator will not be bound by the confidentiality requirements of mediation to the extent allowed by a court in considering a claim against the mediator.

Amendment History

(Adopted January 14, 2022, effective February 1, 2022; amended effective February 7, 2022.) KENTUCKY RULES ANNOTATED Copyright © 2026 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved

Plain-English Summary

Rule 99.11 is the backbone of Kentucky's mediation privilege. Mediation conferences stay closed to everyone but the parties and their lawyers, unless everyone agrees otherwise, and no one may record any part of the session without the mediator's and both sides' express agreement. The rule treats the whole process as settlement negotiations under KRE 408, and it goes further: mediation communications, whether spoken or in documents, are both privileged and confidential, covering not just the conference itself but talks with the mediator before and after it. None of that is discoverable or admissible in court. But the rule doesn't launder evidence — if something was already admissible or discoverable before mediation, using it during mediation doesn't shield it afterward.

The mediator carries specific duties too. A mediator can't tell outsiders what participants said, and can't pass along information one participant shared in confidence to another participant without permission. Because of this, it falls to each party or their counsel to tell the mediator up front which information is meant to stay confidential from the other side. A mediator also can't discuss the substance of the mediation with court staff, beyond what CR 99 or CR 100 allow, and can't be forced to testify about what happened during mediation except by court order for good cause -- a protection the mediator holds personally and that the parties can't waive away.

The confidentiality umbrella has real limits. It never blocks a mediator from reporting abuse under Kentucky's mandatory reporting statutes. A signed settlement agreement isn't automatically confidential either -- it only stays privileged if the parties explicitly say so, and even then, if a party later needs the agreement to prove a breach in court, it loses that protection and comes into evidence. And a court can lift the confidentiality shield if a party brings a claim against the mediator.

Frequently Asked Questions

Is what I say in mediation confidential in Kentucky?

Yes. Rule 99.11 makes mediation communications, including documents and talks with the mediator before and after the conference, both privileged and confidential, and bars their use in discovery or as evidence in court or administrative proceedings.

Can someone record a Kentucky mediation session?

No, not unless the parties, their counsel, and the mediator all expressly agree to it.

Can a mediator be forced to testify about what happened in mediation?

Generally no. Mediators aren't subject to process requiring disclosure of what was discussed, except by court order for good cause, and this protection belongs to the mediator and can't be waived by the parties.

Source & verification. The rule text is reproduced verbatim from the official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 99.11). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. · Official source

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