Yes, with limits. Under 42 Pa.C.S. § 5949, mediation communications and mediation documents are privileged: they generally cannot be forced out through discovery and cannot be used as evidence in court. The main exceptions are a signed settlement document used to enforce the agreement, certain threats or injuries relevant in a criminal matter, fraud in reaching the agreement, and documents that existed independently of the mediation.
Confidentiality is what lets people explore options in mediation without fear that every idea will be quoted back at them in court. Knowing exactly what is protected, and what is not, helps you speak freely and wisely. Our mediation page describes the process; this guide focuses on the privacy rules.
How the mediation privilege works, step by step
- Mediation begins at first contact. For purposes of the privilege, mediation commences at the time of initial contact with a mediator or mediation program (§ 5949(c)).
- Communications are covered. A "mediation communication" is any communication, verbal or nonverbal, oral or written, made to further the mediation process during a session, or outside a session when made to or by the mediator or program.
- Documents are covered. A "mediation document" is written material prepared for, during or under the mediation, including memoranda, notes, files, records and work product of the mediator, program or a party.
- The privilege applies. These communications and documents are privileged; their disclosure cannot be required or compelled through discovery or any other process; and they are not admissible as evidence in any action or proceeding, including judicial, administrative and arbitration proceedings (§ 5949(a)).
- Unless an exception applies. The statute lists four exceptions, summarized in the table below.
| Exception | What it means |
|---|---|
| Settlement documents | A written agreement signed by the parties may be used in a proceeding to enforce it, unless it says it is unenforceable or not intended to be binding |
| Criminal matters | Where relevant in a criminal matter, the privilege does not cover a threat of bodily injury, a threat of felony-level property damage, or conduct in a session causing direct bodily injury |
| Fraud | A fraudulent communication during mediation is not protected if relevant in an action to enforce or set aside the agreement it produced |
| Independent documents | Documents that exist or existed independently of the mediation, such as a bank statement, are not made privileged by being used in mediation |
What this means in practice
The privilege protects the conversation: proposals, concessions, explanations and the mediator's notes. It does not hide facts. A pay stub or account statement you bring to mediation is still an ordinary document that could be requested in a court case, because it existed independently (§ 5949(b)(4)). What the privilege prevents is the other person saying in court, "In mediation she offered to give me the house," as evidence against you.
The signed agreement is a deliberate exception. Once both of you sign a written settlement, it can be enforced, which is the point of reaching it. That is why the moment of signing matters so much, and why many people have their own lawyer review the agreement first; see whether you need your own lawyer in mediation and what happens to a mediated agreement.
Court-connected custody mediation
When a court program is involved, the court rules add their own confidentiality framework. Pennsylvania's custody mediation rules describe mediation as a confidential process that is not a court proceeding but an independent, non-record proceeding (Pa.R.C.P. 1940.2). If no resolution is reached, the mediator reports that to the court in writing within 14 days "without further explanation" (Pa.R.C.P. 1940.6(c)), so the judge does not learn who said what. Courts that set up mediation programs must adopt local rules covering confidentiality (23 Pa.C.S. § 3901(c)(1)).
The Allegheny County Family Division describes its Generations mediation session as "a confidential conversation with an impartial third party," held remotely, and does not permit recording the session or having children or third parties present. See court-ordered custody mediation and the Allegheny County Family Division guide.
How collaborative confidentiality is different
The mediation privilege statute protects mediation. Collaborative divorce meetings are protected mainly by the confidentiality terms of the participation agreement, a contract the spouses and lawyers sign. In practice the protections can look similar, but their source and exceptions differ, so it is worth reading the agreement's confidentiality clause carefully. See what the participation agreement commits you to and what happens to meeting discussions if the process ends.
Safety and confidentiality
Confidentiality never requires anyone to stay in an unsafe process. Mediators have a continuing duty to screen for abuse and to end mediation if abuse makes the case unsuitable, as the official note to Pa.R.C.P. 1940.3 explains, and courts may not order mediation where there has been domestic violence or child abuse within 24 months before filing. Threats of bodily injury are not protected when relevant in a criminal matter. See when mediation is not safe.
Practical habits that protect your privacy
The statute does a lot of work, but a few habits make it more effective. Keep mediation notes and drafts in a separate folder labeled for mediation, so it is clear which documents were prepared for the process. Mark drafts "for mediation purposes" and avoid signing anything until you intend it to be binding, since a signed settlement document is the main exception. Be careful with email and text: messages to the other person outside a session, and not made to or through the mediator, may not count as mediation communications. Do not record sessions; besides any program rule against it, a recording invites disputes. And if you share documents, share copies of ordinary records rather than writing new statements about the facts, which are more likely to be argued over later.
Sharing mediation information with your lawyer and advisers
Confidentiality does not mean you must keep mediation to yourself. People routinely discuss proposals with their own lawyer, and often with an accountant or financial adviser, before deciding. The statute's definition of a mediation communication includes communications made by "any other person present to further the mediation process," and its definition of mediation documents includes the work product of a party, so material prepared for the mediation keeps its protected character. It is still sensible to tell anyone you consult that the information comes from mediation and should be kept confidential, and to avoid forwarding drafts more widely than needed.
Family members and friends are a different matter. Venting about the other person's proposals on social media or in group chats is never wise: it can damage trust in the process even where it creates no legal problem, and posts are not covered by any privilege. If you need support during mediation, a counselor or a trusted friend in a private conversation is a better outlet than anything written or public.
What changes the answer
- Who you are talking to. Messages between the parties outside a session, not made to or by the mediator, may fall outside the definition of a mediation communication.
- Whether you signed. A signed settlement document can be enforced unless it says it is not binding.
- Criminal relevance. Threats of injury and violence in a session are not protected in a criminal matter.
- Program rules. Local court programs add their own rules, such as Allegheny's no-recording rule.
- Collaborative versus mediation. Different source of protection; read the participation agreement.
A worked example
For example, imagine hypothetical parents Dana and Eli who mediate a custody schedule but do not reach agreement. In a later custody hearing, Eli's lawyer tries to introduce Dana's mediation proposal to give Eli every other weekend. Under § 5949, the proposal is a mediation communication and is not admissible. Dana's bank statements that she shared in mediation, however, existed independently and can be requested in the court case. The mediator's report to the court said only that no resolution was reached. This is an illustration only.
Common mistakes
- Assuming facts become secret. Independent documents are not privileged.
- Signing a draft too early. A signed settlement document can be enforced.
- Texting proposals outside sessions. Those messages may not be mediation communications.
- Recording sessions. Programs such as Allegheny's do not permit it.
- Treating confidentiality as a reason to stay when unsafe. Safety comes first.
What to do this week
- Read 42 Pa.C.S. § 5949 from the official source.
- Ask the mediator how confidentiality is handled in your agreement to mediate.
- Keep mediation notes and drafts in a separate folder.
- Avoid signing anything until your lawyer has reviewed it.
- Read how family mediation works to see where confidentiality fits.
Frequently asked questions
Can the mediator testify about what we said?
Mediation communications and the mediator's notes are privileged and generally not admissible, subject to the statute's exceptions.
Is the final agreement confidential?
A signed settlement document can be used to enforce the agreement; once filed with a court as part of an order, it may become part of the court record.
Are my financial documents protected because I used them in mediation?
No. Documents that existed independently of the mediation are not privileged.
Does the court learn why mediation failed?
In court-connected custody mediation, the mediator reports only that no resolution was reached, without further explanation.
Is collaborative divorce covered by the same law?
The statute covers mediation. Collaborative confidentiality comes mainly from the participation agreement.
When does the privilege start?
At the time of initial contact with a mediator or mediation program.
Sources
- 42 Pa.C.S. § 5949, confidential mediation communications and documents
- Pa.R.C.P. 1940.2, definitions
- Pa.R.C.P. 1940.3, orientation orders and abuse screening note
- Pa.R.C.P. 1940.6, termination of mediation and report to the court
- 23 Pa.C.S. § 3901, mediation programs and local rules on confidentiality
- Allegheny County Family Division, Generations Program
