Is Intellectual Property Mediation Confidential?

Mediation is designed to support candid settlement discussions, but “confidential” is not one universal rule. Protection may come from governing law, a court order, the mediation agreement, provider rules, and evidence rules. Those sources may not cover the same people, information, or later uses.

For an IP dispute, identify the treatment of source code, license terms, product plans, royalty data, trade secrets, and pre-existing documents before the session. Texas law, for example, protects specified mediation communications subject to statutory limits and exceptions, while preserving material that is independently admissible or discoverable. Federal Rule of Evidence 408 governs specified evidentiary uses of compromise negotiations in federal proceedings; it is not a complete secrecy code, and applicable state evidence rules may differ.

Before the session, confirm who may attend, whether recording or AI note-taking is prohibited, how caucus information may be used, how materials will be stored or destroyed, and whether a court or protective order adds requirements. If institutional rules apply, identify them expressly.

Confidentiality is most useful when the parties define its boundaries before sensitive material is exchanged.

General information only; not legal advice.

Sources verified: Texas CPRC §§ 154.071(a), 154.073(a)-(c), (e)-(f) (https://statutes.capitol.texas.gov/Docs/CP/htm/CP.154.htm#154.073); Federal Rule of Evidence 408 (https://www.uscourts.gov/sites/default/files/document/federal-rules-of-evidence.pdf); WIPO Mediation Rules arts. 15-18 (https://www.wipo.int/amc/en/mediation/rules/).