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Recording a Mediation Session

Wednesday, March 11, 2026 12:23 PM | Anonymous

Recording Conversations Legally in Ohio

Is it ethical / good practice for a mediator to record a conference or mediation session with the consent of all parties?  To share the recording or AI summary with the parties?

What are your thoughts?


Comments

  • Wednesday, March 11, 2026 2:56 PM | Edgardo Cartagena
    Recording a mediation session sounds like a good idea for the mediator to keep track of position and posturing as the process develops. Parties likely will not agree to recording the sessions. It may also have the unintended consequence of a chilling effect on communications with the mediator.
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    • Wednesday, March 11, 2026 3:01 PM | Ed Mullins
      I would not record. The whole point is that it is supposed to be informal and confidential. The existence of the record will just be used in future litigation if settlement breaks down.
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  • Wednesday, March 11, 2026 3:01 PM | Steve Skulnik
    Ethical? If the parties consent (absent coercion), I don't see an ethical issue.

    Good practice to use AI? Hardly. Mediators are hired for their wisdom and judgment and not for playing with toys. The parties have the same toys and can play by themselves.
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  • Wednesday, March 11, 2026 3:02 PM | Judge Richard B. Klein (ret.)
    A mediation is always done with the consent of the parties. I see no problem with recording a mediation session WITH BOTH PARTIES as long as there is consent from everyone. It is the same as ex parte conversations with parties, since that is the nature of mediation (certainly not arbitration). While it may be more controversial, I certainly think I can take notes of a Zoom conference on one screen while conducting a medaition on another. Zoom creates a summary of the zoom. But it often gets things wrong - I just had them say a hearing would be in the Philippines when what was said was Philadelphia). However, this was just a scheduling status call. I think the situation is very different for a full mediation. Since it is definitely confidential, one would not want to take the risk of a summary or transcript leaking. But again, it's up to the parties.
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  • Wednesday, March 11, 2026 3:05 PM | Kent Stuckey
    I think a mediator should exercise care to not create either notes or recordings from the session that could be misused by a party. I am involved in a case where parties in arbitration engaged in mediation. They identified a framework for potential settlement and were to finalize an executed settlement agreement within 5 days of the mediation. The mediator had taken handwritten notes, which she then sent my email to the parties. When the parties failed to finalize a written agreement, one party filed in state court claiming that the unsigned notes constituted a binding final settlement agreement. And, since arbitration was not mentioned in the mediation notes, the trial court declined to promptly address the mediation privilege issues and denied a stay for the pending arbitration to continue, which was upheld by Ohio's Tenth Circuit Court of Appeals. There is great risk that privileged materials may be blatantly misused and result in a party being denied their right to arbitration and be required to litigate the mediation, regardless of terms of the Uniform Mediation Act that may appear clear. Accordingly, I think a best practice in mediation is to avoid sharing notes or any other record of the session that could potentially be misused.
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  • Wednesday, March 11, 2026 3:12 PM | David E. Robbins
    Mediations are confidential and a recording of any part of them has the potential of breaching confidentiality. In addition, I can't see any purpose for the recording or a third-party (no matter how artificially intelligent it would be) to summarize it. No is my simple answer.
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    • Wednesday, March 11, 2026 3:16 PM | Ruth Samas
      I agree.
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  • Wednesday, March 11, 2026 3:15 PM | Michael H. Diamant
    What could possibly go wrong? All that is said in a mediation is confidential and not usable in court. I cannot imagine parties consenting to recording nor should they.
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  • Wednesday, March 11, 2026 3:15 PM | Jack Levin
    Younger people especially see no problem in recording everything, including on their new eyeglasses. Best to assume that everything is being recorded all the time. "Off the record" is so yesterday.
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  • Wednesday, March 11, 2026 3:16 PM | Anonymous
    I don’t record mediation sessions because I think it unethical especially if no agreement is reached
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  • Wednesday, March 11, 2026 3:28 PM | Robert L. Arrington
    I am in the camp of not recording.
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  • Wednesday, March 11, 2026 4:54 PM | Keith Ashmus
    A recorded session could just invite attempts to obtain the recording. I do not object to using a recording function to document the terms of any agreement reached and the assent of all parties to that resolution.
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  • Wednesday, March 11, 2026 4:56 PM | Jaime Ramon
    I would not be in favor of recording a mediation. The whole purpose of mediation (court ordered or by arbitral tribunal) is to resolve a dispute and to keep the discussions private and confidential. The parties permit what can and cannot be divulged to the other party and the mediator plays a key role in that.
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  • Wednesday, March 11, 2026 5:21 PM | Jerry Hoover
    Don't even think about it! Even if the parties agree. Mediators could be drug into Court later if a settlement goes South for any reason.
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    • Wednesday, March 11, 2026 5:47 PM | Joseph "Tad" Halbach
      Rule 12 of the Harris County District Court Mediation Rules expressly prohibit the recording of a mediation. In any event, I would never do it or allow it.
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  • Wednesday, March 11, 2026 6:26 PM | DSlaughter
    My experience is a mediator is in the commercial or construction arenas only, but I can think of no good reason to record any portion of a mediation session. I take ensure from careful notes that which I am authorized to share. If one of the parties wishes to make a statement directly to the other party, and is hesitant to do so face-to-face, the technology certainly exists to record that statement. However, I don’t think of many parties who would be willing to do that and certainly unwilling to open the door to a full scale recording of the mediation itself.
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  • Wednesday, March 11, 2026 6:46 PM | Nancy Greenwald
    I follow the well known mediator's version of the Las Vegas rule - what happens in mediation stays in mediation. I can think of no legitimate reason for recording what happens in mediation. If the parties reach a settlement, the terms of the settlement set the rules of engagement. If they do not settle and move forward to arbitration or litigation, the relevant facts share during mediation will remain discoverable. A recording of any mediation session would open the door to arguments about admitting communications that are confidential.
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  • Wednesday, March 11, 2026 10:33 PM | Sigmund Schutz
    The only time I’ve seen it done was to record a closing session where a settlement was reached. The mediator read the points of agreement and asked each party to affirm approval. The goal was to create a binding agreement. Aside from that sort of thing, I only see mischief in recording mediation sessions.
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  • Thursday, March 12, 2026 12:56 AM | Anonymous
    An ethical issue does not arise, given that parties have agreed to the recording. Most importantly, the agreement should capture all the requirements of the applicable data protection legislations with respect to the parties and the mediator. Confidentiality and banning the use of the recording for litigation would be addressed in the same document and prior to the recording. I would not use AI to transcribe as I have had unsatisfactory results.
    A video recording can be of great help to the parties, who might use it to consider important clues and body language which they might have missed during the sessions. It would help the mediator be more tactful and the parties more strategic in the future sessions.
    Paul Ngotho, Nairobi Kenya.
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  • Thursday, March 12, 2026 8:52 AM | Ira Lobel
    I do not believe any of us would think about having a transcription of a mediation session. Recording it is the same as transcribing it . in a different manner. It should never even be considered.
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  • Thursday, March 12, 2026 12:42 PM | John M. Delehanty
    I never record mediation sessions. The bedrock of mediation is confidentiality, which supports candor and a free discussion of litigation and settlement positions. Recording the mediation would undermine these values and cause counsel and parties to be less candid and flexible. Also there is a great risk that the recording could be leaked and used by the parties in contravention of confidentiality. As far as AI goes., I do not allow it and am quite annoyed that it shows up uninvited on Zoom. I always shut it down. Its alleged usefulness is totally overblown and I have seen too many lawyers get in trouble for using it and finding themselves citing fake cases.
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  • Friday, March 13, 2026 1:12 PM | George Graff
    It is not a matter of ethics or permission, but effectiveness. In my view, the function of mediation is to assist the parties in understanding the needs of both parties, realistically assessing the risks of litigation, and, if possible, helping them to find a settlement that both can accept. This requires a level of candor that is rarely expressed "on the record."
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