How To Preserve Attorney-Client Privilege

Attorney-client privilege generally protects confidential communications between a client and their lawyer during mediation, but it can be lost through waiver, third-party disclosure, or crime-fraud exceptions. In many mediations, additional confidentiality rules and state statutes also apply, yet they vary by jurisdiction and don’t automatically shield every statement or document. This article explains how privilege and mediation confidentiality interact, key exceptions, and practical steps to preserve protection before and during mediation.

Ray Hrdlicka – Host – Attorneys.Media

So, it sounds like the traditional attorney-client privilege, which is kind of interesting here, extends to both parties with you.

Bill Leininger – Divorce Mediation Attorney – Richmond County, NY

Yes, because there’s going to be, in the mediation agreement, it will say specifically, you know, will deal with confidentiality. And that’s why we have to have a specific understanding. Some mediators say, everything you tell me in caucus, you’re agreeing that I can tell your spouse, unless you specifically say, don’t tell them… ABC.

Others will say, it’s just the opposite. I will not tell your spouse anything that you shared in caucus session with me, unless you specifically tell me I am allowed to. A lot of people feel a little safer doing that, you know, because it has to be something very specific.

I’ll make a note in my notes here and everything else. And so you understand your spouse may get upset when I tell them that, yes, but we’re not going to get any place unless we bring this up.

Ray Hrdlicka – Host – Attorneys.Media

Well, one way it doesn’t, you know, create trust with the person that you’re speaking with. And the other way it does, I mean, I don’t understand why anybody would go the former versus the latter.