§ 8.01-581.22.Confidentiality; exceptions.

Chapter 21.2. Mediation · Last amended 2013 · Last verified July 16, 2026

In one sentenceVirginia keeps mediation communications and case-file materials confidential and shielded from discovery, except for nine specific carve-outs — including a written waiver by all parties, threats of bodily injury, ongoing or planned crimes, ethics complaints against the mediator, and challenges to vacate the resulting agreement — while a signed written settlement itself stays open unless the parties agree otherwise.

Full Text of § 8.01-581.22

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All memoranda, work products and other materials contained in the case files of a mediator or mediation program are confidential. Any communication made in or in connection with the mediation, which relates to the controversy being mediated, including screening, intake, and scheduling a mediation, whether made to the mediator, mediation program staff, to a party, or to any other person, is confidential. However, a written mediated agreement signed by the parties shall not be confidential, unless the parties otherwise agree in writing.

Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the mediation agree, in writing, to waive the confidentiality, (ii) in a subsequent action between the mediator or mediation program and a party to the mediation for damages arising out of the mediation, (iii) statements, memoranda, materials and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the mediation, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against the mediator by a party to the mediation to the extent necessary for the complainant to prove misconduct and the mediator to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party's legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in § 8.01-581.26 in a proceeding to vacate a mediated agreement, or (ix) as provided by law or rule. The use of attorney work product in a mediation shall not result in a waiver of the attorney work product privilege.

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Plain-English Summary

This section builds the confidentiality wall around mediation. Every memorandum, work product, and other material in a mediator’s or mediation program’s case files is confidential, and so is any communication connected to the mediation — including screening, intake, and scheduling — whether it was made to the mediator, program staff, another party, or anyone else. The one built-in exception is the written mediated agreement itself: once signed by the parties, it isn’t confidential unless they agree in writing to keep it that way.

Beyond that, confidential mediation materials and communications generally can’t be pulled into discovery or any judicial or administrative proceeding — but the statute lists nine exceptions where they can. Those include a written waiver by all parties, a later lawsuit between the mediator or program and a party over the mediation itself, evidence that existed independently of and wasn’t prepared specifically for the mediation, threats of bodily injury, communications used to plan or commit a crime or conceal an ongoing one, ethics complaints against the mediator, misconduct or malpractice claims against a party’s lawyer based on mediation conduct, challenges to vacate the agreement under § 8.01-581.26, and anything else law or rule otherwise requires.

The section also protects a separate, older privilege: using attorney work product during a mediation session doesn’t waive the work-product privilege that would otherwise attach to it.

Frequently Asked Questions

Is the signed written mediation agreement itself confidential?

No, unless the parties otherwise agree in writing, a written mediated agreement signed by the parties is not confidential.

Can mediation communications be used in a later ethics complaint against the mediator?

Yes. Where an ethics complaint is made against the mediator by a party, communications may be used to the extent necessary for the complainant to prove misconduct and for the mediator to defend against the complaint.

Are threats of bodily injury made during mediation protected by confidentiality?

No. That is one of the listed exceptions — confidentiality does not apply where a threat to inflict bodily injury is made.

Does using attorney work product during mediation waive the work product privilege?

No. The section specifically states that the use of attorney work product in a mediation does not result in a waiver of the attorney work product privilege.

Can confidential mediation communications be used to challenge and vacate the resulting agreement?

Yes. They may be used where sought or offered to prove or disprove any of the grounds listed in § 8.01-581.26 in a proceeding to vacate a mediated agreement.

Amendment History

1988, cc. 623, 857; 2002, c. 718; 2013, cc. 283, 383.

Source & verification. Section text and amendment history are reproduced verbatim from the Code of Virginia, published by the Code of Virginia, Virginia Division of Legislative Automated Systems. Last verified July 16, 2026. · Official source

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