In Connecticut, there are rules providing that divorce mediation is a confidential process, meaning that all communications made during a mediation session by any spouse, whether in a joint session or private caucus, cannot be used in court regardless of whether the parties reach an agreement or not. These rules may also prohibit, or the parties may agree to prevent, other public disclosures of communications made in the divorce mediation process. These rules may also provide that communications made during a private caucus involving one of the parties and the mediator will remain private from the other spouse unless the party who participated in the private caucuses permits the attorney-mediator to disclose any of the communications to the other spouse. There are some exceptions to confidentiality, however.
The mediation attorneys will or should discuss all the aspects of confidentiality regarding the mediation. The crime-fraud exception applies to the divorce mediation services provided by attorney mediators. This is also known in general, as the crime-fraud exception to the attorney-client privilege. The crime-fraud exceptions allow the Connecticut State judges to read, review, compel production of and compel testimony of an attorney-mediator and his or her records. The attorney-mediator, or any mediator for that matter, (therapist mediator, financial mediator, etc.,) can also be subpoenaed to testify against one or both of the spouses who committed the fraud.
This exception to the confidentiality rule in mediation only arises if, and only if, the client/spouse uses the mediating attorney’s services to commit a crime. An example of this in the divorce mediation process would be if a spouse used an attorney mediator’s help to draft the financial affidavit for the divorce, the couple plans to submit this affidavit to the court, and parts of the financial affidavit presented is false, inaccurate, or a spouse misrepresents some or all of their financial information. The spouse has used the divorce mediator’s help to commit a crime. The divorce mediation attorney does not know that a crime is afoot. They usually do not since, notwithstanding the public misconception, most divorce mediation attorneys would not knowingly assist any client in committing a crime, tort or fraud.
In a divorce, whether litigated, traditional, collaborative or mediated, one can readily imagine many examples of when and how a divorce attorney or divorce mediation attorney services might be used to commit a crime. The attorney-mediator drafts the spouses’ Financial Affidavits for the Court and the spouse with the pension or the large bank account does not provide the information to his/her attorney or the divorce attorney-mediator. Consequently, the other spouse is completely ignorant of the existence of the asset. That asset or pension will likely not stay hidden for long, however. Elvis Presley said it best, “Truth is like the sun. You can shut it out for a time, but it ain’t going away.”