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Penetration of Mediation and Alternative Dispute Resolution: Part 2

Confidentiality and Mediation

Confidentiality and mediation both have a very close relationship as;

  1. Effective mediation requires a convinced level of sincerity, 
  2. Equality to both parties needs its continuation, 
  3. It constitutes one of the reason for opting mediate, 
  4. It helps to protect the process and nature of mediation as a means of alternative dispute resolution and;
  5. It helps in the maintenance of impartiality of the mediator, particularly if the latter is involved in a succeeding legal proceeding. 

Though, the maintenance of confidentiality in mediation has, for many reasons, seems challenging. The reasons may be;

  1. The most common way of shielding it is via a rule of evidence which however does not always extend the required level of shielding to all aspects and features of mediation but is only a suitable way of mandatory protection of confidentiality mostly concerning court proceedings. 
  2. Confidentiality is often only impliedly preserved or, even where it is preserved via a confidentiality provision, still the degree of this protection remains unclear and yet where confidentiality rules are restricted in statutes in the form of “legal privileges”, the structure of such privileges and the consequent shield of confidentiality under them may be different.
  3. Still, if there are mediation agreements covering confidentiality, the parties who enter into it are binds by it and not third parties that may interfere with the procedure of mediation.
  4. Public policy issues may perceive the stimulant of the veil of confidentiality. Similarly, the shielding of confidentiality may also seem challenging.

For all the above-stated factors, as well as because of the probability of having ex-parte communication at the mediation stage which, as stated above, may put the whole process of mediation at stake as the award can be challenged on such a ground.

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