ABSTRACT
The mediator needs to make clear that the obligation of confidentiality includes not only the parties but also the mediator who can enforce the confidentiality provision even if the parties relinquish it. The court will uphold the mediator’s independent entitlement to confidentiality unless it is necessary in the interests of justice for confidential evidence to be disclosed. Confidentiality needs to be distinguished as a concept from other forms of privilege which relate to legal proceedings, such as ‘without prejudice’ privilege. All communications made in the course of mediation – whether between the parties themselves, or between the parties and the mediator(s), or between mediators or the parties’ solicitors – are confidential, subject to certain exceptions, and will not be disclosed. Where mediators do allow separate confidential communications in the context of an early and established stage within the structure of the joint session, the parties need to be informed about its nature and purpose in advance.
