Rule 88.08.Confidentiality and Settlement.

Rule 88.08 protects the confidentiality of mediation under Rule 88. It treats mediation proceedings as settlement proceedings, and — apart from the limited disclosure allowed under Rule 88.06(a)(6) — any communication relating to the disputed subject matter made during mediation by a participant, the mediator, or anyone else present is confidential. No admission, representation, statement, or other confidential communication made in setting up or conducting the mediation is admissible as evidence or subject to discovery. That said, a fact that is independently discoverable does not become immune from discovery just because it also happened to come up during mediation.

The rule extends this protection to the mediator personally. No one who serves as a mediator, and no agent or employee of that person, can be subpoenaed or otherwise compelled to disclose anything revealed while setting up or conducting the mediation.

On the binding effect of mediation, the rule is direct: all mediations are non-binding unless the parties enter into a written agreement as described in the rule. Settlement takes the form of a written document laying out the essential terms of the agreement, executed after mediation ends. A written agreement of that kind is binding to the extent the law allows.

Finally, the rule allows a narrow exception to the confidentiality it otherwise imposes. An individual or organization that provided mediation services, or their agent or employee, may be called in a later action to enforce the written settlement agreement — but only for the limited purpose of describing events that occurred after the mediation concluded.