9 - Confidentiality

Summary

Mediation confidentiality can be characterised as the cornerstone of the mediation process. The legal protection of mediation evidence can emanate from common law privilege, contract and statute. If comprehensive statutory protection is available, parties may not have to protect from disclosure mediation evidence in their contract, or rely on common law privilege with its various exceptions. There is often a lacuna between the general perception that complete confidentiality applies to the participants in a mediation, and the more limited protection conferred by the courts. While a balance is required between supporting mediation and not freezing litigation or upholding illegality, this balance is not easy to achieve. The approach of making mediation confidentiality ‘absolute’ appears to create straightforward rules for an informal process, but it can prove to be either overreaching or inappropriate. While uniform laws offer consistency, experience indicates that they fail to gain sufficient traction or acceptability to have widespread impact. In protecting mediation confidentiality, it is important that courts retain the power to admit mediation evidence in appropriate cases.