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Reese v. Tingey Construction/LWP Claims Solutions, Inc., (Utah February 1, 2008), held the content of mediation is confidential and agreements reached in mediation must be in writing to be enforceable. The parties had mediated in December of 2005 and did not sign a written agreement. Reese filed a motion to enforce the oral settlement agreement allegedly reached in mediation. LWP opposed the motion, stating that it refused to sign the proposed agreement because it disagreed with a term. The trial court found that the mediation discussions contained confidential and nonconfidential information and ordered LWP's attorney to be deposed regarding the content of the mediation. The Utah Supreme Court reversed stating that mediation is confidential. Further, the court stated, "[w]e hope this opinion will put future litigants and courts on notice that the statutory bar [of confidentiality] is to be carefully observed." The court also ordered the portions of the record containing confidential information sealed and further ordered all trial judges who reviewed the confidential information recused from further proceedings. The court declined to rule on whether the Uniform Mediation Act which was enacted in Utah effective May 1, 2006 was applicable in this case.
Lyons v. Booker, 982 P.2d 1142 (Utah App. 1999), stating that confidentiality in mediation "is essential to the proper functioning of an appellate settlement conference program." In Lyons, the parties participated in court-ordered appellate mediation at the Utah Court of Appeals. The court's order mandating mediation provided that statements and comments made during the conference and in related discussions shall not be disclosed. Following mediation, appellant filed a motion to enforce a settlement reached in mediation and attached an affidavit detailing the discussions in mediation. The court remanded to the trial court, on the basis that the appellate court lacked jurisdiction to hear evidence and decide such a motion. The court also stated that counsel, the parties and the mediator were prohibited from disclosing statements, memoranda or notes created during or after mediation.
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