What Confidentiality Covers

In general, communications made during a mediation, including what is said in the session and in private conversations with the mediator, are confidential, and so are the mediator’s notes and records.

Confidentiality matters because it lets people speak candidly, test ideas, and discuss options without worrying that those words will later be used against them. A party can acknowledge a problem, float a possible solution, or explain what they really need, which is often hard to do in a setting where every word may end up in a court record.

Written materials prepared for the mediation, such as summaries the parties send to the mediator beforehand, are generally treated the same way as what is said in the session.

Where It Comes From

Texas’s alternative dispute resolution statute provides confidentiality for communications made in mediation and similar procedures. The statute is available on the Texas Constitution and Statutes website.

The written agreement to mediate usually restates and adds to those protections for the specific case. The rules of evidence also generally limit using settlement offers and negotiations to prove liability. The rules are linked from the Texas Judicial Branch rules page.

What It Does Not Cover

Confidentiality has limits. Common exceptions include:

  • Mandatory reporting. Duties to report suspected abuse or neglect of a child or of an elderly person or person with a disability can apply. See Texas Family Code chapter 261 and Human Resources Code chapter 48.
  • Information available elsewhere. Evidence that exists independently of the mediation doesn’t become confidential just because it was mentioned in mediation.
  • The settlement agreement. A signed settlement agreement is typically not confidential unless the parties agree that it will be.
  • Other exceptions. The statute and court decisions recognize other limited exceptions.

Private Sessions With the Mediator

During a mediation, the mediator may meet with one side privately, often called a caucus. Mediators commonly keep what is said in a caucus from the other side unless they have permission to share it. The agreement to mediate should state how this works, so ask if it isn’t clear.

Private sessions give each side room to talk through concerns, priorities, and options they aren’t ready to put on the table. It is reasonable to say clearly what may and may not be shared, and to ask the mediator to confirm before anything is passed along.

Who Is Bound By Confidentiality

Texas’s confidentiality provisions apply to communications made by participants in the mediation, and they protect the mediator from being required to disclose what happened. In practice, the agreement to mediate usually asks everyone who attends, including the parties, their attorneys, and anyone else present, to keep the mediation confidential.

If someone else will attend, such as an advisor, a family member, or a company representative, it is worth confirming in advance that they are covered by the agreement, and adding them if they are not.

Court-Referred Mediation

When a court refers a pending case to mediation, the same statutory confidentiality provisions generally apply to the mediation itself. The court’s order and any local rules may add requirements, such as reporting whether the case settled, without revealing what was said.

Before You Share Sensitive Information

Timing matters. Confidentiality protections are built around the mediation itself and the written agreement to mediate, so the safest time to share sensitive details is after that agreement is signed. Information sent through a website contact form or in an early email is not the same as a confidential mediation communication. For a first contact, describe the type of dispute in general terms and save the details for the call or the session.

Practical Tips

  • Don’t record the session.
  • Share what happens in mediation only with people who need to know, such as your attorney or the decision-makers in your organization.
  • Read the confidentiality section of the agreement to mediate, and ask questions before the session.
  • Keep sensitive details out of website forms and early emails; save them for after the agreement to mediate is signed.

Online Sessions

  • Join from a private room, with no one else listening unless everyone has agreed.
  • Use a secure connection rather than public Wi-Fi.
  • Don’t record, and close other apps that could share your screen or audio.
  • Headphones help keep the conversation private.

The agreement to mediate controls the specifics for each case, and an attorney can advise you about your own situation. For how the full process works, see How Mediation Works In Texas and the confidentiality section of How It Works. To ask a question, schedule a free consultation.

Common Questions

Generally no. Communications made in mediation are confidential and generally cannot be used as evidence, with limited exceptions.

Texas law generally protects mediators from being required to testify about what happened in a mediation, with limited exceptions.

Not automatically. The parties can agree to keep its terms confidential, and an attorney can explain how that works.