§ 25-2933.Privilege against disclosure; admissibility; discovery.

Section 25-2933 is the working heart of the Uniform Mediation Act. It answers the question that brings most people to this statute: is what I say in mediation confidential? The answer is yes, with real teeth, and yes, with real limits addressed in the sections around it. A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding, unless it falls under one of the exceptions in section 25-2935 or has been waived or precluded under section 25-2934.

The privilege belongs to three separate people, each independently. A mediation party may refuse to disclose a mediation communication, and may stop anyone else from disclosing it. A mediator holds the identical right over the mediator’s own mediation communications. A nonparty participant, someone in the room who is not a decision-making party, a witness, expert, or support person, for example, holds that same right over that participant’s own communications. Because each holder’s privilege stands on its own, one person’s willingness to talk about what happened in mediation does not strip the privilege from anyone else who spoke.

The section closes with a clarification that keeps the privilege from becoming a loophole. Evidence or information that would otherwise be admissible or subject to discovery does not become privileged just because someone disclosed it or used it during a mediation. A document a party would have had to produce in ordinary discovery stays discoverable even if that party brought it to the mediation table; the privilege protects the mediation communication itself, not underlying facts or documents that exist independent of the mediation.