Is Anything I Say in Mediation Confidential?
Yes, and under Supreme Court Rule 88.08 the protection is stronger than most people expect, because it reaches discovery and not only what a judge is allowed to hear. What changes the answer is which mediation you are in, and one of the three options St. Louis County offers is expressly not confidential.
For a physician, an attorney, an accountant or anyone who runs a company, discretion is often the entire reason to settle rather than try the case. So the useful version of this question is not whether mediation confidentiality exists. It is how far it reaches, where it stops, and which program you have been put into.
This page answers all three, and it names the one local option we tell clients to avoid when privacy is the point.
What Does Rule 88.08 Protect?
Communications made during mediation, against both admission into evidence and discovery.
Rule 88.08(a) provides that “mediation proceedings shall be regarded as settlement proceedings” and that, with one exception noted below, “any communication relating to the subject matter of such disputes made during the mediation by any participant, mediator, or other person present at the mediation shall be a confidential communication.”
It then adds the operative bar, that “no admission, representation, statement, or other confidential communication made in setting up or conducting a mediation shall be admissible as evidence or subject to discovery.”
Read the last five words twice. The rule reaches discovery, not only admissibility. That means the other side is not entitled to go looking, which is a meaningfully broader form of mediation confidentiality than the local rule that governs cases in the City of St. Louis. That comparison is below and it matters.
Can the Mediator Be Subpoenaed?
Not under this rule.
Rule 88.08(b) provides that “no person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.”
Note that it covers the mediator’s agents and employees as well, which matters because a mediator’s office has staff, schedulers and files. It is the part of mediation confidentiality nobody thinks about until somebody serves a subpoena.
What Are the Three Exceptions to Mediation Confidentiality?
Three, and all three sit on the face of the rule rather than in case law.
That is the complete list of limits mediation confidentiality carries under Rule 88.08, which is worth knowing precisely rather than approximately.
- Documents released with your agreement. Rule 88.08(a) carves out “information released pursuant to Rule 88.06(a)(6).” That provision requires the mediator to “disclose to the parties’ attorneys any factual documentation revealed during the mediation if at the end of the mediation process the disclosure is agreed to by the parties”
- Facts that were discoverable anyway. Rule 88.08(a) provides that “no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication”
- Enforcing the settlement. Rule 88.08(e) allows the mediator or the mediation provider to “be called in an action to enforce the written settlement agreement reached following the mediation’s conclusion for the limited purpose of describing events following the mediation’s conclusion”
The second one is the one that catches business owners. Mediation does not launder a document. If a balance sheet, a tax return or a valuation was discoverable before you slid it across the table, it is discoverable afterward, and handing it over in mediation neither creates nor destroys the other side’s right to it. What the rule protects is the communication. It was never going to protect the underlying fact.
Does the Rule Exempt Domestic Violence Cases?
Rule 88.08 contains no domestic violence exception, and it is worth saying that plainly because the opposite is sometimes assumed.
The safety protections are real, but they live elsewhere and they do nothing to mediation confidentiality. Rule 88.07(b) requires a mediator to terminate mediation whenever the mediator believes continuing “would harm or prejudice one or more of the parties or the children.” Section 452.372.2 RSMo makes “a finding of domestic violence or abuse as determined by a court with jurisdiction after all parties have received notice and an opportunity to be heard” good cause for not ordering alternative dispute resolution at all. And Rule 88.05(a)(2) requires a mediator’s twenty hours of training to include “a component of training covering violence and power imbalance issues.”
None of those is a mediation confidentiality exception. They decide whether you should be in mediation at all and who should run it, and none of them changes what happens to what you say once you are there. Our page on when divorce mediation may not be your best option covers the first question.
What About Child Abuse Reporting?
Missouri strips nearly every privilege in child abuse and neglect matters, and mediation confidentiality is not on the short list of survivors.
Section 210.140 RSMo provides that “any legally recognized privileged communication, except that between attorney and client or involving communications made to a minister or clergyperson, shall not apply to situations involving known or suspected child abuse or neglect.”
Two privileges survive. Attorney and client, and clergy. Everything else gives way.
So the practical question is who your mediator is. Section 210.115.1 RSMo lists the people required to report suspected abuse or neglect, and the list names “psychologist, mental health professional, social worker” and “juvenile officer” among many others. It does not name attorneys. Rule 88.05(a)(1) lets a family mediator qualify either as an attorney or as a person with a graduate degree in “psychiatry, psychology, social work, counseling, or other behavioral science.”
For one St. Louis program we can answer this flatly. A mediation in the City family court is conducted by a Deputy Juvenile Officer, and juvenile officer is named on the reporting list. For a private mediator the answer turns on the qualification route and on the catchall at the end of the list, which reaches any “other person with responsibility for the care of children.” No Missouri decision applying that list to a family mediator surfaced.
What we tell clients is short. Ask a prospective mediator what their reporting obligations are before the session, not during it. A mediator who answers immediately has thought about cases like yours. One who has never considered the question has told you something useful too.
Does Mediation Confidentiality Apply Before a Case Is Filed?
It can be, and the way to make sure is a written agreement you can sign in five minutes.
Section 435.014 RSMo is the general Missouri provision on mediation confidentiality outside a filed case, and Rule 88.08 does not reach that far because there is no case for it to govern.
Subsection 1 provides that “if all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process.”
Subsection 2 then provides that such proceedings “shall be regarded as settlement negotiations,” that communications made during the process “shall be a confidential communication,” and that no confidential communication “not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.”
There is a seam in that statute and you do not need it resolved. The written agreement condition appears in subsection 1, which is the provision that stops anyone compelling the mediator to talk. Subsection 2 does not restate the condition in its own words, and no Missouri decision reading the requirement across surfaced. Sign the written agreement and the argument never happens. That is the whole recommendation, and it costs a paragraph of drafting.
Is the Free St. Louis County Option Confidential?
No, and the circuit’s own rule says so in one sentence.
This is the most concrete warning on this page, and it applies to the option people pick precisely because it costs nothing.
Local Rule 68.14 gives three ways to comply. Under 68.14(a) “the parties may jointly and voluntarily agree upon a mediator from the Court’s master list to conduct confidential mediation.” Under 68.14(b) the court may order the parties to a mediator from that same master list, again “to conduct confidential mediation.” Under 68.14(c) the parties may be ordered to work with Domestic Relations Services for the purposes of developing a custody plan, and the rule then states, in its own words, that “the use of Domestic Relations Services is not confidential.”
Two of the three carry mediation confidentiality and one does not, and the rule labels them itself. That is not a subtlety buried in a footnote. It is the text.
So our advice here is not complicated. If discretion is part of why you are mediating, do not comply through Domestic Relations Services. Agree on a mediator from the master list under 68.14(a), which is the route the same rule calls confidential mediation. The money you save with the free option is real and it is small next to what one unguarded sentence can cost a business owner. Our page on the St. Louis County family court covers how that circuit runs.
Is City Mediation Covered the Same Way?
No, and the gap is wider than the local rule’s own words suggest.
Local Rule 68.7.6 of the 22nd Judicial Circuit provides that all statements by the parties or a minor child during mediation under that rule “shall constitute statements made as part of settlement negotiations and, therefore, shall be inadmissible at any evidentiary hearing.”
Set that beside Rule 88.08. The Supreme Court rule bars discovery as well as admission, and it bars anyone subpoenaing the mediator, so mediation confidentiality is narrower in the City on the face of the local text. The City rule says neither of those things on its own terms. It addresses what a judge may hear at a hearing and stops there.
Then look at who the mediator is. Rule 68.7.2 provides that in every City case where custody or visitation “is a genuine and substantial issue” the parties “shall present themselves to a Deputy Juvenile Officer assigned to the Domestic Relations Unit of the Family Court for mediation.” Rule 68.7.5 then requires that officer to inform the court whether mediation was completed and whether the custody or visitation issues were resolved. The mediator is a court officer who reports back to the judge on the outcome, not a private neutral you retained.
That is a defensible design for a busy family docket and it is not the same product. If confidentiality is the reason you chose mediation, know which of the two you are in before the session rather than after it.
What Should a Professional Do About All This?
Treat mediation confidentiality as real, treat it as finite, and settle five questions before you walk in.
- Know which program you are in. Rule 88.08, a County master list mediator, Domestic Relations Services and a City Deputy Juvenile Officer are four different answers to the same question
- Do not expect it to shelter a document. Independently discoverable facts stay discoverable, whatever you hand across the table
- Get a written confidentiality agreement for any private mediation, and ask what applies in a court program
- Ask a prospective mediator about reporting obligations before the session, particularly where their qualification route was behavioral science rather than law
- Say nothing you could not survive being repeated. Three exceptions is not zero, and the rule protects the sentence rather than the fact behind it
Where a business is in the case, that preparation is worth more, because the documents are worth more and there are more of them. Our page on divorce for business owners covers what gets exchanged either way.
Who Can Help With Mediation Confidentiality in St. Louis?
For a professional or a business owner, what stays private is often worth as much as what gets divided, and as this page shows, the answer changes with the program rather than with the county line.
Bardol Law Firm practices only family law and handles mediation and litigation in St. Louis County, St. Louis City, St. Charles County and Jefferson County. We know which circuit runs which program and we will tell you before you agree to one. You can read more about high net worth divorce, about property and asset division, and the rest of our family law questions and answers.
You should not have to chase your attorney for basic updates. Every client here has a named paralegal on the file, and we generally return calls within one business day.
Family Law, Simplified.
If discretion is why you would rather settle than try your case, that is worth a specific conversation before anybody picks a mediator. Contact Bardol Law Firm or call 314.918.0100.
This page is general information about Missouri law and is not legal advice. Local court rules change without notice, so confirm the current version for your own circuit. Every case turns on its own facts. The choice of a lawyer is an important decision and should not be based solely upon advertisements.