Confidentiality

A. Except as provided in this Section, all oral and written communications and records made during mediation, whether or not conducted under this Chapter and whether before or after the institution of formal judicial proceedings, are not subject to disclosure, and may not be used as evidence in any judicial or administrative proceeding. B. (1) The parties, counsel, and other participants therein shall not be required to testify concerning the mediation proceedings and are not subject to process or subpoena, issued in any judicial or administrative procedure, which requires the disclosure of any communications or records of the mediation, except with respect to the following: (a) Reports made by the mediator to a court, pursuant to that court's order, only as to whether the parties appeared as ordered, whether the mediation took place, and whether a settlement resulted therein. (b) In connection with a motion for sanctions made by a party to the mediation based on a claim of a party's noncompliance with the court's order to participate in the mediation proceedings; however, the disclosure of any communications and records made during the course of the mediation shall be strictly limited to the issue of noncompliance with the court's order. (c) A judicial determination of the meaning or enforceability of an agreement resulting from a mediation procedure if the court determines that testimony concerning what occurred in the mediation proceeding is necessary to prevent fraud or manifest injustice. (2) The mediator is not subject to subpoena and cannot be required to make disclosure through discovery or testimony at trial except in a judicial or administrative procedure with respect to Subparagraph B(1)(a) of this Section. C. The confidentiality provisions of this Section do not extend to statements, materials and other tangible evidence, or communications that are otherwise subject to discovery or are otherwise admissible, merely because they were presented in the course of mediation, if they are based on proof independent of any communication or record made in mediation. D. If this Section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the court having jurisdiction of the proceedings to determine, in camera, whether the facts, circumstances, and context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure. E. Confidentiality, in whole or in part, may be waived when all parties and the mediator specifically agree in writing.