A mediator's mental impressions and observations about the mediation present a more complicated question, with important practical implications. See Olam v. Congress Mortgage Co., 68 F.Supp. 2d 1110 (N.D. Cal. 1999). As discussed below, the mediation privilege is modeled after, and draws heavily upon, the attorney-client privilege, a strong privilege that is supported by well-developed case law. Courts are to be expected to look to that well developed body of law in construing this Act. In this regard, mental impressions that are based even in part on mediation communications would generally be protected by privilege.

More specifically, communications include both statements and conduct meant to inform, because the purpose of the privilege is to promote candid mediation communications. U.S. v. Robinson, 121 F.3d 911, 975 (5th Cir., 1997). By analogy to the attorney-client privilege, silence in response to a question may be a communication, if it is meant to inform. U.S. v. White, 950 F.2d 426, 430 n.2 (7th Cir., 1991). Further, conduct meant to explain or communicate a fact, such as the re-enactment of an accident, is a communication. See Weinstein's Federal Evidence 503.14 (2000). Similarly, a client's revelation of a hidden scar to an