Mediation News

25-11-2016

Are Mediations Confidential?

Are mediations confidential, the absolute answer to this is yes!

Confidentiality is one of the cornerstone principles of mediation, and arguably one of the most important, that is why the mediation process is so attractive to parties, as they know that the process is confidential and safeguards them, compared to litigation which is not confidential.

Regardless of what type of mediation you may enter into, whether it be commercial, workplace, employment, family or community mediation all types of mediation are governed by the clause of confidentiality.

Are Mediations Confidential – 2 fold

Mediation confidentiality plays two roles however, firstly the whole process is confidential and those in attendance cannot without the permission of the other parties divulge anything that is said or done at the mediation, in fact all parties in attendance need to sign an agreement to mediate which has a whole section dedicated to confidentiality, equally without prejudice, which is another principle of mediation needs to be discussed.

Are Mediations Confidential – Without Prejudice

Without prejudice means regardless of what is said, done or even agreed in principle at a mediation, without any agreement being executed, i.e. signed by both parties, none of this can be referred to should the matter not settle and proceed to a more formal process such as litigation.

However cannot a Court or Judge compel the parties to discuss what they may have spoken about at a mediation? No! Any previous discussions, draft, potential agreements are inadmissible.

Equally unless subpoenaed a mediator cannot be called to act as a witness at any court hearing either, although this has been debated in recent times, with the landmark case of Farm Assist Limited (in liquidation) Claimant – and – The Secretary of State for the Environment, Food and Rural Affairs (No.2), whereby a mediator was called to act as a witness, even though the mediator challenged the witness summons, the application to set aside the witness summons was dismissed.

This however was a one off; generally mediators are immune from giving testimony.

Rewinding back slightly to the actual mediation, the second level of confidentiality is where the mediator must observe, private meetings between the parties, most mediations will have a series of joint as well as private meetings, it is in these private meetings where the mediator needs to be extra careful if they are told something by party A and told not to repeat it to party B, then they must observe that information and treat as confidential, only with the express permission of the party who departed with such information, may it be passed onto the other party.

Are Mediations Confidential – Can a mediator break confidentiality? 

When can a mediator break confidentiality? Generally they cannot, however exceptions would be, where a crime has taken place, about to take place, for example where the Proceeds of Crime Act comes into play, or where another is in danger of being harmed, other than this a mediator must observe confidentiality at all times, to include discussing or writing about any cases that they have mediated, whereby they should change certain details whereby none of the parties are identifiable.