A. Except as provided in Rule 4.D.5 above, and Rule 5.B below, all communications, negotiations or settlement discussions by and between participants and/or mediators in the mediation shall remain confidential. All parties attending a mediation shall sign a written agreement that the proceeding will be confidential.

B. Notwithstanding Rule 5.A above, lawyer mediators have a duty to, and nonlawyer mediators should, report conduct that would be reportable under the applicable rules of professional conduct or other applicable statutes or rules.

Comment

Confidentiality in a mediation hearing is of paramount importance. Nevertheless, the need to report lawyer misconduct takes precedence. Lawyer mediators have a duty to, and nonlawyer mediators should, report conduct that would be reportable under the jurisdiction's applicable rules or statutes. A lawyer having knowledge that another lawyer has committed a violation of the [rules of professional conduct] that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, must inform the appropriate professional authority. Nonlawyer mediators should refer to this standard in determining their responsibility to report lawyer misconduct. The fact that mediators have a duty to report lawyer misconduct should not have a chilling effect on those parties who are sincere in availing themselves of the benefits of mediation. All mediators may also be required by the laws in their jurisdiction to report to the appropriate agency evidence of other types of misconduct, i.e., child abuse or criminal conduct, that comes to light during a mediation.

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