Mediation and Confidentiality

by | Jun 29, 2023 | contentious probate, contentious trusts, Lasting Power of Attorney, mediation, Private Client Disputes, trustees, trusts, Wills and Probate

‘Mediation thrives on confidentiality…’ (Freedman & Prigoff 1986)

Mediation is confidential, which means that nobody other than the people involved in the mediation should know the content of what’s being discussed.

Why is confidentially so important?

  1. In a confidential environment, people are free to make or withdraw offers and to say what’s on their minds, without fear that a statement could come back to haunt them in court (known as ‘without prejudice’). Whilst maintaining respect for each other, people can say what they want in mediation.
  2. Mediation protects the privacy of individuals and their dispute, as meetings are held without anyone else being present and no one reports on what’s been said. This prevents private disputes being reported by the press and can protect sensitive commercial information (e.g. intellectual property).
  3. An agreement to keep the mediation confidential can help to build trust, which is generally missing between people involved in a dispute.

Confidentiality extends to the mediator, who is trusted by the other people involved not to discuss the content of conversations, nor the identity of the people involved with anyone.  There’s three exceptions where the mediator will breach confidentiality:

  • If, during the course of the discussion, it becomes apparent that an adult or child is at risk of serious harm, the mediator will report this to the relevant agency (Police, child protection unit, etc)
  • If someone involved in the mediation admits to committing, or is about to commit, a very serious crime (e.g. an act of terrorism).
  • If the case were to progress to a court, the people involved could waive their right to confidentiality and the mediator could be called as a witness. This is extremely rare.

It’s the content of the discussion in a joint meeting, or the one to one conversation with the mediator, that must remain confidential, if mediation is to be successful.

By Dave Warren

Reference: Freedman L.R. Prigoff  (1986) Journal Of Dispute Resolution, Vol 2:1 1986, Confidentiality In Mediation: The Need for Protection. Available at: https://core.ac.uk/download/pdf/159574785.pdf

Photo by Kristina Flour on Unsplash

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