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Responsibilities Regarding Confidentiality in Mediation.
One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Spencer and Altobelli (2005, p. 261) point out it is considered common for parties entering into mediation to sign a mediation agreement document with the mediator. The parties therefore agree that it’s a condition of being present or participating in the mediation and the document if necessary may be deemed confidential by virtue of the common law.
Confidentiality is central to mediation. It is imperative for parties to trust the process. Very few mediations will ever succeed unless the parties can communicate fully and openly without fear of compromising their case before the courts. Charlton and Dewdney (2004, p. 344.) highlight mediation confidentiality is seen as one of the key ingredients to encourage disputing parties to negotiate with each other in order to achieve a settlement of their dispute.
Organisations have often seen confidentiality as a reason to use mediation ahead of litigation, particularly when disputes arise in sensitive areas of their operation or to avoid their affairs being publicised among business competitors, acquaintances or friends. Steps put in place during mediation to help ensure this privacy include;
1. The mediation meeting is conducted behind closed doors.
2. Outsiders can only observe proceedings with both parties consent.
3. No recording of the transcript is kept; and
4. There is no external publicity on what transpired at the mediation.
There is no doubt confidentiality contributes to the success and integrity of the mediation process. But no matter what agreements or policies and how many times the mediator informs the parties the information discussed during mediation is confidential. Can a mediator ever really guarantee full confidentiality protections between parties will occur?
Charlton, R. & Dewdney, M. 2004. The Mediator’s Handbook. Skills and Strategies for Practitioners. (2nd edition) Ligare Pty Ltd, Riverwood NSW.
Spencer, D. & Altobelli, T. 2005. Dispute Resolution in Australia. Cases, Commentary and Materials. Ligare Pty Ltd, Riverwood NSW.
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