The second potential case related to Article 408 on the protection of communication on settlements refers to their vague language of “compromise negotiations”. The courts that adopted section 408 have found that “compromise negotiations” do not involve simple trade negotiations. In other words, there must be a number of existing disputes that need to be resolved, not just standard-round negotiations on a routine activity issue. Under this standard, there are the following examples of communications that cannot be protected as “compromise negotiations”: the first potential protection trap under Rule 408 is visible in their simple language. In practical terms, Rule 408 only states that transaction communications are “not admissible.” But just because a transaction communication can be inadmissible doesn`t mean the other can`t detect it. This creates a potential problem because your business is generally more open and open in billing communication because it thinks it is a protected communication. But be careful, because even if your company`s billing is not allowed, it may be possible. A simple hypothesis shows this point: in some cases, and perhaps in most cases, confidentiality can be a very important topic. There may be doubts about the admission of evidence in the course of a court proceeding or other judicial proceeding. There may be concerns about disclosure to third parties and perhaps to the general public. Different situations will raise different concerns and resolutions. Whether you are negotiating a compromise offer or going to mediation, it is helpful to understand the basics of confidentiality. With respect to mediations, the confidentiality provisions are drawn from sections 1115-1128 and 703.5.
Point (c) of Section 1119 states that “all communications, negotiations or conciliation discussions between participants and each other remain confidential in mediation” (emphasized). Section 1119 (a) states that no evidence of “something said” during mediation is “eligible or firm to the object.” And disclosure of such evidence should not be imposed in any proceeding where testimony may be compelled. Section 1119 (b) says: “[n]o write . . . . In the context of mediation or mediation or mediation advice or the obligation to discover, disclosure of the letter is not mandatory. . . . In addition, Section 703.5 specifies that a mediator is not entitled to testify in a civil proceeding about a deposition or conduct during mediation, subject to a few very limited exceptions related to contempt and criminal conduct.
39. In re MSTG, Inc., 675 F.3d 1337, 1347 (Fed. Cir. 2012) (“[W] reserve for an additional day, the question of what limits can be set appropriately for the discovery of settlement negotiations.”). Confidentiality in settlements and mediations is not always as simple as is often believed. And confidentiality in the settlement is not the same as confidentiality in mediation.