A debate over the need for mediation confidentiality and how to best provide it has accompanied the rapid growth of mediation. Most states have found mediation confidentiality sufficiently important to warrant creating a new evidentiary privilege by statute. Despite widespread belief that mediation confidentiality merits the protection of a privilege, most jurisdictions have refused to completely block mediation communication from use as evidence. The inclusion of exceptions to a mediation privilege reflects the longstanding doctrine that the need for evidence, at times, outweighs the rationale behind protected communications. The Massachusetts legislature has created a statutory privilege for communication during mediation, providing confidentiality in any “judicial or administrative proceeding.” The blanket of confidentiality extends to all memoranda and other work product, and to any communication made by a mediator, party participant or third parties involved in the mediation. No exceptions to this broad protection are provided by the statute. . . .
