By Steven G. MehtaSteve Mehta

The saga of Carrie Prejean, the Miss California contestant for the Miss USA pageant who came out against gay marriage, had a picture of her breasts “accidentally” exposed during a photo shoot, and who sued the Pageant, which then countersued to get back their money for her breast implants, and who then settled the case when a sex tape was discovered of her, is still in the news.  But this time, she took on Larry “Inappropriate” King for the ultimate fight about mediation confidentiality. 

Here is a brief discussion of her interview in the Examiner….

Carrie Prejean nearly walked out of the Larry King show after calling Larry King inappropriate. Larry King asked Carrie Prejean about the sex tape that she made for her boyfriend.

“All right, let’s get to an embarrassing part for you and how you are handling it. You recently confirmed that when you were 17, you made what you call a private video, a sexual-type tape that you sent to your boyfriend. Have you seen the video?” Larry King asked.

Apparently, Carrie Prejean wasn’t interested in speaking about the sex tape and answered Larry by saying, “You know, I don’t think that’s the important issue, Larry. I think that, you know, there’s a video out there of me that I sent to my boyfriend at the time. And it was for private use. But does that justify my actions? No. And I take complete responsibility for the decisions that I made when I was a teenager. And I’ve learned a lot from it.”

Larry King asked Carrie Prejean if she told anyone at the Miss USA pageant about the video, she answered no and reminded the public that she wasn’t fired for any moral clause. Larry then asked Carrie Prejean if she planned to pursue legal action to block the video from being made public, especially since she was underage when the video was made. It was at this point that the ‘inappropriate’ behavior began.

Carrie Prejean answered,” You know, everything that was discussed, Larry, in mediation is completely confidential. And it seems as though I’m the only one holding up to that contract. So, if that’s the case, then I will stand by that contract, and abide by it.”

Larry King continued to press further, “Did you get a settlement?”

Again, Carrie Prejean answered, “That’s completely confidential. There was a confidential mediation. And I don’t think that needs to be discussed right now.”

Larry King broke for a commercial break but picked the topic back up shortly after Carrie Prejean called Sarah Palin her hero.

Larry King asked Carrie Prejean, “We’re back with Carrie Prejean. She’s the author of “Still Standing.” That book is available everywhere. We’ll take a call or two for Carrie in a moment. You sued the pageant after they fired you. They counter-sued. And then you accused them of a number of things including religious discrimination, clearly an issue very important to you. Why did you settle? You don’t have to tell me the terms of the settlement. But why settle, since you had a fight to carry on?”

To see the remainder of the interview, click here.

This interview, however, brings up the issue of what is confidential and what is not in mediation.

First, not everything about mediation is confidential.  It is not like in the Movie or show Get Smart where once something involves mediation, there is a cone of silence.  However, the question, did you get a settlement would remain confidential assuming the settlement agreement had a confidentiality clause.  If there was no confidentiality clause in the settlement agreement, then the fact of the settlement and the amount would not be confidential.  This is because the check, the release, and other documents would exist outside of the mediation process.

Ms. Prejean’s answer to the question of why settle is not covered by confidentiality.  Her own thought process exists outside of the mediation.  The terms of the settlement remain confidential due to the confidentiality clause in the settlement agreement, but the reasons do not.  She would be free to explain her reasons for settling.

Other things associated with the mediation would also not be confidential.  Anything that was in existence before the mediation, such as the sex tape would not be confidential.  Any comments that Ms. Prejean made before the mediation would also not be confidential.  What was said in the mediation, however, would remain confidential. 

If, however, a document or piece of evidence was created solely for the mediation such as a compilation of her sex tape, then that might be considered confidential. 

Obviously, confidentiality differs with each state and the issues discussed are simply general discussions.  But contrary to Ms. Prejean’s view, not everything arising from mediation is confidential. 

What are your thoughts about Ms. Prejean’s comments or about confidentiality?

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