Examples Of Mediator Confidentiality

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2.3 Mediator Confidentiality in the US The Uniform Mediation Act, approved for enactment by the Commissioners on Uniform State Laws in 2001, provides that: “A mediator may refuse to disclose a mediation communication, and may prevent any other person from disclosing a mediation communication of the mediator.” While mediator confidentiality is said to be essential for mediation success, there are clearly legal and public policy reasons for restricting its ambit. The question lies in where should the line be drawn. One approach is to distinguish between mediation communications, which generally should remain confidential, and the conduct of parties, which is more suited to court scrutiny. The UMA defines “mediation communications” as…show more content…
However, this right, being an extension of the “without prejudice” rule, is restricted to parties. A mediator may be compelled to give evidence before the court if the parties agree : “A substantial and, to our knowledge, unquestioned line of authority establishes when a third party, whether official or unofficial, professional or lay, receives information in confidence with a view to conciliation. The courts will not compel him to disclose what was said without the parties’…show more content…
As a result, even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced. (b) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege. (c) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.” ADR practitioners are more concerned with the issue of admissibility than the strict issue of confidentiality. As Boulle points out, it is a difficult matter for a party to effectively enforce confidentiality of mediation as against another party. It is more likely that a party will seek to adduce evidence based upon what has transpired at the mediation. The Court will be required to determine whether that evidence is
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