Confidentiality in Mediation

What are the rules for confidentiality in mediation?

At the start of mediation, all parties sign a mediation agreement, which includes a confidentiality clause. This agreement establishes the following rules:

1. Confidentiality applies only to new information shared during mediation.

   • Anything known or disclosed before mediation is not covered by confidentiality.

2. Confidentiality remains in effect even after the mediation ends.

   • However, it does not apply to new developments that arise after mediation. All discussions during the mediation process remain confidential.

3. Parties can mutually agree to exceptions to confidentiality.

   • If both parties agree, they can deviate from the confidentiality clause, but the mediator must also consent to this decision.

Example

During a recent mediation, an employee declared, "Confidentiality is pointless! I have nothing to hide, and neither do you, right?" The employer reluctantly agreed, not wanting to appear as if they had something to conceal. However, the mediator intervened, emphasizing the importance of confidentiality to ensure a safe and open dialogue. The mediator explained that people often share personal or emotional information during mediation, which they might later regret without confidentiality. Both parties ultimately agreed to keep the discussions confidential.

Why is confidentiality important in mediation?

Confidentiality creates a safe space for participants to share their concerns and emotions without fear of judgment or misuse. In conflicts, trust between parties is often limited, making it difficult to be vulnerable or transparent. Confidentiality encourages openness, which is often essential for achieving progress and finding solutions.

Mediators take confidentiality seriously and rarely deviate from it, as it lays the foundation for productive discussions and resolutions.

What falls under mediation confidentiality?

Everything disclosed during mediation, from the signing of the mediation agreement to its conclusion, is covered by confidentiality.

• Does the existence of mediation fall under confidentiality?

  • No, unless agreed otherwise. You can inform others that you are participating in mediation, as this decision typically occurs before the agreement is signed.

• Does the final settlement agreement fall under confidentiality?

  • Yes, unless parties agree otherwise. However, you are permitted to present the settlement agreement to a court if the other party fails to comply with its terms.

What does confidentiality mean for third parties?

• Can I discuss mediation with my partner?

  • No, unless agreed otherwise. If one party wishes to involve a partner, the mediator will facilitate written approval. The partner must also adhere to confidentiality, and in some cases, sign an agreement.

What happens if confidentiality is breached?

If confidentiality is breached, the responsible party violates the signed agreement and may be held liable for damages caused by the breach. However, proving damages and pursuing legal action can be challenging and time-consuming.

A mediator will address any breaches with the parties involved to determine if the mediation can continue. If the breach compromises the process, the mediator may decide to terminate the mediation.

Bypassing confidentiality after mediation

If mediation ends without resolution, a party can reframe their final offer outside the mediation process to use it in subsequent legal proceedings. This does not violate confidentiality, as it involves only the party's own position, not information shared by the other side.

Confidentiality with Result ADR

At Result ADR, we understand the importance of confidentiality and can provide guidance tailored to your specific situation. Our experienced mediators ensure that every mediation is conducted in a safe and secure environment. Don’t carry the burden of conflict alone—let us help you resolve it.