Edward M. Spiro and Christopher B. Harwood When parties engage in private mediation, they frequently assume that their mediation-related submissions and communications are not discoverable in litigation. In fact, while courts generally cloak mediation with a fair degree of confidentiality, this protection is not absolute and courts have disagreed whether a party seeking discovery of materials relating to a confidential private mediation (as distinct from a court-sponsored mediation) must make a heightened showing of need.
