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Mediation is one of the methods through which a dispute may be resolved as an alternative to the process of litigation. This process is a process that involves the use of a third party who is neutral to the dispute and acts as an intermediary to the mediation proceedings. This mediator is critical to the entire mediation process in that they act as intermediaries in helping the conflicting parties to come to a mutual and satisfactory settlement to their disagreement. The settlement in the form of a decision arrived at during the mediation proceedings are then put down in a contract that contains the capability of being enforced. Mediation has been considered among the most cost-effective ways of arriving at a mutual agreement by any parties to a dispute. It is also the surest way of attaining a result that is favorable to both parties while preserving and even improving their relationship. The most crucial advantage of the process of mediation is its characteristic feature of confidentiality which then dictates that the mediator remains well within their prescribed duties to ensure such confidentiality.

Confidentiality of Mediation Proceedings

In mediation, the parties involved make conclusions on who the mediator should be, the process through which the mediation will be implemented. They decide on the matters that ought to be preserved confidentially. The entire process is, in fact, provided to be confidential. They are not capable of being forced to disclose any information they themselves decide to preserve under confidentiality. The parties negotiate in a free atmosphere dictated by themselves. The result is often productive since the parties would often negotiate without any fear of their dealing going public. This is in utter contrast of the process of litigation which is often too exhaustive and costly. In litigation, the parties to any dispute do not make the guidelines on how to handle and solve their differences. Rather, this is decided by the law and the courts. It also takes too much of the parties time and the decision made is on the basis of an antagonistic argument between the parties. The result of the litigation method, therefore, is only favorable to one of the parties. It may also fail to take the welfare of the parties into thought.

The general rule in mediation proceedings is that the proceedings should always be made confidential and constantly be that way. For the intent of reinforcing and making sure that the confidentiality feature of the process of mediation is continually upheld, the parties to the mediation proceedings may decide upon the use of a mediation contract. The mediation agreement is typically prepared by the mediator to the particular proceedings. It is then executed by the parties through the acceptance the details and other provisions within the mediation agreement. The key purpose of the mediation agreement is to set out the process that the parties anticipated to be used in the resolution of their conflict. The agreement also lays down a description of is expected of the parties together with the mediator. This mediation agreement declares the particular mediation proceedings as a confidential matter.

There has been an increasing discussion on whether the confidentiality clauses in the mediation agreement are enforceable or not. This has been argued mostly in the affirmative. The clauses proscribing the disclosure of any matters arising from the mediation proceedings have been asserted to bear an almost sure enforceability. It has been regarded that in the event that a mediator were to give a testament in any consequential formal proceedings such as litigation about the matters that emerged in the process of negotiations, one of the parties is likely to feel discriminated. This is regardless of the matter in the testament being a truthful or objective account of the issues that arose during the proceedings.

Confidentiality at Common Law and Equity

The confidentiality requirements in a majority of the alternative dispute resolution mechanisms such as the use of mediation is often derived from the preparation and execution of a contract. There are various duties required of the parties, including the mediator, pertaining to the confidentiality of the mediation proceedings involved. These include duties that arise from an express term of a mediation agreement made in writing, a duty that is implied, and a duty as a result of a quasi-contract term.

Express Terms

In mediation processes, it is common for the requirement and placement of duties regarding the confidentiality needed for the process to be clearly provided in a mediation agreement. This is prepared by the particular mediator and executed by the parties to the proceedings through the placement of their particular signatures on the written mediation agreement. The duties laid out in the mediation agreement are both expressed towards the mediator and the parties. The most common expression of the duty of confidentiality conferred upon the mediator states that the mediator should not reveal to any other individual any information that they obtained in the course of the mediation process. This further states that the mediator may only do so upon receiving permission from the parties. Such permission gotten from the parties must be in written form. This requirement may only be exempted if the mediator is compelled by law to make such revelation that is in breach of their confidentiality duty.

The parties to the mediation proceedings are also imposed upon the duty not to reveal to any individual any material that has been acquired in the course of the proceedings. In case one of the parties wants to disclose such confidential information, they are required to obtain permission from the other party. This permission sought from the other party must be issued in writing. There are two exemptions to this requirement though. The party does not need any consent for the other party if they are disclosing the matter to their professional advisors with an intention regarding the same proceedings. They may also disclose the information without the other parties consent if it is made an obligation by law to make such a disclosure.

The parties may, furthermore, be required by the agreement not to call the mediator to testify in any administrative or legal processes regarding the disagreements. This is regardless of the stage at which the mediation proceedings are. It may be before, in the course or prior to the process of the mediation taking place. The parties to the mediation proceedings and agreement are, therefore, expressly bound by the confidentiality clause.

The ultimate rule regarding the confidentiality clauses of the mediation agreement is that no information derived from mediation proceedings may be used in any subsequent processes. It is affirmable that the production of any such information as evidence in other processes is not allowed. Such evidence is considered inadmissible in any court.

The confidentiality clause in the mediation agreement is readily enforceable by either party to the agreement who is aggrieved. This is because of the nature of the mediation agreement being contractual. As such, all the parties involved, together with the mediator, must uphold the confidentiality of the particular mediation proceedings.

Implied Terms

In virtually all types of alternative conflict resolution strategies, the need for and conferment of confidentiality duties upon the parties involved may be attained through implied. This often occurs in cases where there is no clear and express provision of terms to govern the expected confidentiality. This is position is considered in a similar fashion in cases involving mediation as a means of resolving disputes.

In mediation, the availability of an implied confidentiality does not prevent the employment of particular documents that exist outside the mediation process in limited situations. This was as illustrated in the case of Farm Assist Limited v The Secretary for Environment Food and Rural Affairs. Despite the lack of clarity provided for confidentiality that is implied in this case, there are exceptions to such implied confidentiality. These include cases where there is the need for consent or where the employment of documents is critical to the interests that justice ought to be served.

An implied confidentiality in mediation cases is also the result of the relationship between the parties and mediator to the particular mediation. The mediator, by virtue of their position and association with the parties to the mediation process, must maintain the confidential aspect of the process. If the mediator is incapable of upholding the confidentiality requirement, then their purpose to aid in the mediation is fundamentally breached. This is a duty owed to the parties by the mediator as a core obligation to their roles. Confidentiality by implication may also be provided and protected in equity.

Quasi-Contract Terms

With the rise in the use of alternative dispute resolution methods, there has also been improvement in the laws to cater for this. Laws such as the Associations Incorporation Act require that incorporated associations implement dispute resolution methods such as mediation. Members to the particular association are subject to these provisions. The implication here is that there is a quasi-contract imposed upon the association and its supporters. In this case, confidentiality, consequently, flows to any conflict resolution mechanism employed in accordance with the statutory structure.

Exceptions to Confidentiality in Mediation Proceedings

This may be done through various ways. Waivers may be used to lift the confidentiality requirement. Such waiver, however, must be mutual rather than unilateral. Both parties to the mediation must give consent to any presented waiver of confidentiality. This is done solely by the parties to the mediation. Proof is offered through a sworn affidavit.

Public safety is another exception to confidentiality in mediation. In the event that the mediator or the parties are informed of any imminent danger upon the safety or life of an individual, they may breach the confidentiality requirement. It becomes the public duty of the mediator and the parties involved. This requires that one employs their reason in doing so upon prudent belief or confirmation of such danger.

If the mediation process entails matters with allegations of fraud and gross misconduct, confidentiality may be lifted. This is if the allegations are the grounds for admitting such evidence of matters that took place during mediation. In this case, the court lifts the confidentiality.

The enforcement of any agreements arrived at in a mediation proceeding also allows an exemption of the applicability of confidentiality. In this case, the court will allow either party to present evidence of the agreement attained at the mediation. This is important in achieving the main goal of the mediation process which is to solve the dispute in an agreeable and mutual manner. It is, however, rare for mediation agreements to be contested. This is because mediators often leave the documents unexecuted until a mutual and unchallenged agreement is arrived.

Duties of the Mediator in Relation to the Confidentiality Requirement

Mediators are obligated by their Ethical and Professional Code of Practice to ensure that they observe confidentiality in regards to all issues disclosed during the mediation process in general. When the parties accept to participate in the mediation, they are normally required by the mediator to append their signatures to a Mediation Agreement. The agreement provides that every negotiation undertaken in relation to the mediation have to be privileged and carried out without prejudice. The phrase without prejudice implies that all matters discussed during mediation cannot be presented as evidence in imminent legal proceedings.

The process of mediation is regarded to be a private and confidential on two levels. To begin with, it has to be keep confidential every time so that no third party may be permitted to be have knowledge of the proceedings. Secondly, any matter that he mediator has privately discussed with one of the parties should not be disclosed to the other party unless when authorized. If the mediator, therefore, discloses the information without the authorization of that party may be held liable of breaking his duty of confidentiality. He is also mandated with ensuring that the parties are aware of the importance of privacy to ensure that they do not themselves breach the duty of confidentiality to themselves. He is thus mandated to ensure that the parties understand the extent of their duty of confidentiality towards each other in relation to information disclosed during the process.

If, however, the mediating parties authorize the mediator to disclose the content of the mediation or the information that was disclosed during the process, he may do so. The law does not prohibit him to disclose information that he has been authorized to disclose.

Also, if a mediator takes part in the mediations’ teaching, researching or evaluating, he is supposed safeguard the anonymity of the parties and adhere to their rational anticipations in relation to confidentiality.

Depending on the context of mediation, the parties are allowed to have different expectations in relation to the confidentiality that the mediator is supposed to address. The parties have the option of making their own rules regarding confidentiality. The parties may also choose to adopt the norms or the practice of the mediator, or what the mediator may choose to present.


The process of mediation as way of conflict resolution is crucial to the arrival of mutual agreements and the preservation of good relationships. It is also more effective in the sense that it is timely and less costly. Mediation, however, has a number of requirements and duties of the parties and mediators. The need to maintain confidentiality is crucial to the validity of the mediation process. Confidentiality may be provided through a mediation agreement which makes express confidentiality provisions. In other instances, confidentiality may be through implied terms and even quasi-contracts which require associations and their members to be use dispute resolution practices and be confidential in them. Confidentiality places various duties upon the parties and mediator to the mediation. This is mainly the duty of nondisclosure. The duty of confidentiality weighs majorly on the mediator who owes both parties such duty.

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