Source: (1982) Alternatives to Litigation and Adjudication, pp. 42-58.

Many statements might be made during mediation and arbitration discussions that could later prove embarrassing if not otherwise damaging to the parties in both civil and criminal litigation. Consequently, if the parties are not protected from the use of such statements, they may be discouraged from participating. Also, the records maintained by the program may be revealing with regard to the issues explored and resolved either by the parties or an arbitrator. Some protection for the oral statements made during the negotiation sessions might be found in the common law evidentiary rule, which gives limited privileged status to offers of compromise. Regarding written records, in the absence of legislation making the records privileged, the degree to which they will be open to public scrutiny will turn on whether the programs are considered State agencies. If screening criteria for diversion programs are to meet the constitutional requirement of equal protection, each screening factor should have some logical relationship to the furtherance of the stated goals of the diversion program. The issue of procedural due process arises at the conflict hearing and later when revocation and referral back to the criminal court is contemplated because of complaints of noncompliance with mediation or arbitration agreements. Due process actions do not apply to actions of private agencies and individuals, so the State does not hold any potential for depriving any party of freedom, life, or property.