The mediation of cases involves opposing positions. A mediation session begins with a brief opening statement by the mediator laying out for the parties and lawyers that the process that is about to take place will remain confidential. The mediator in most settings will mention a few exceptions and explain confidentiality when the parties and their representatives meet in caucus, which is with the mediator in private.
Before the mediation session begins, attorneys would be wise to inform their clients exactly what the process is all about and the distinctions between the terms — confidentiality and privilege.
At the outset, and well before the day of mediation, the parties would be asked to review and sign the mediation agreement. Most mediation agreements contain language of confidentiality and references to privilege in outlining the mediation process.