A party to confidential mediation proceedings cannot compel the deposition of opposing counsel as to whether an oral settlement agreement was reached during the proceedings, according to the Utah Supreme Court.

In Reese v. Tingey Const., No. 20060594, 2008 WL 268987 (Utah Feb. 1, 2008), employee Reese and insurer LWP participated in mediation, attempting to reach a workers' compensation claim settlement. Reese maintained that he reached an oral settlement agreement with LWP during mediation, which LWP denied. Reese then moved to compel LWP's counsel to submit to a deposition as to whether an oral settlement agreement was reached during mediation.

The trial court opined that mediation sessions contain both confidential and non-confidential discussions, and ordered LWP's counsel to submit to the deposition, because the existence of an agreement was not considered a confidential discussion. LW appealed.

On appeal, the Court cited strong policy considerations supporting mediation confidentiality. Specifically, the Court observed that such proceedings are "designed to encourage informal and confidential exchange among the persons present to facilitate resolution of the dispute," and that such an exchange "can be achieved only when the parties are assured that their communications will be protected from postmediation disclosure."

The Court regarded the trial court's categorization of "confidential" and "non-confidential" discussions during mediation proceedings as the type of judicial practice that "could jeopardize mediation participants' willingness to freely engage in settlement-inducing dialogue, thus undermining a primary requirement of successful mediation." Barring a narrow, recognized exception to the rule, or consent of all parties to the mediation, all information exchanged within mediation proceedings was subject to the confidentiality rule. See Utah Code § 78-31b-8.

The Court also held that settlement agreements reached during confidential mediation proceedings must be reduced to writing to be judicially enforced. See Utah Code § 78-31b-7(3)(a). Concerned with the consequences of a contrary rule, the Court interpreted the statute as requiring a writing because a written instrument allows the court to enforce or interpret the terms of an agreement "without requiring it to delve into the confidential process that led to the creation of the agreement" during mediation.