People who have participated in a mediation will tell you that the words private and/or confidential are repeated by the mediator multiple times during the proceedings and for good reason. It is an essential element to the success of any mediation and it operates on several levels.
First, when parties agree to engage in mediation the mediator will explain the confidential nature of the mediation process and this is reaffirmed in the mediation agreement. The Arbitration and Mediation Court of the Caribbean Mediation Rules (“AMCC Rules”), at Art. 5, set out that all parties shall sign such an agreement which should clearly outline the role and responsibilities of the parties involved and the mediator as well. Secondly, privacy as stated under the AMCC Rules Art. 10 extends not only to the mediation session but all related communications which are considered privileged. Thirdly, confidentiality also exists during the private meetings conducted between a mediator and a party to the dispute.
The AMCC Rules Art. 11 provides that the entire mediation session is to be cloaked in the “protective blanket” of confidentiality so as to create a safe environment in which the parties are free to engage in the process and it achieves several goals. Confidentiality provides an environment where parties can share with the understanding that any topic discussed will be not be repeated or used against them outside of the session by the mediator or other parties to the mediation. It also allows the parties not only to raise and discuss issues which at first glance may not seem relevant to the dispute at hand but can shed light on a party’s interests and subsequent actions. In addition, in a judgment free atmosphere, parties can be creative in their problem solving to reach a settlement agreement. However, as mediation is a voluntary process if a party objects to participating due to confidentiality concerns they should not be coerced into staying in the mediation.
Confidentiality is also reflected under the AMCC Rules Art. 8 (3) which refers to ex parte meetings held between the mediator and a party to the mediation. Before this meeting begins the mediator will assure the party that any topic discussed will remain confidential until express permission is given that the information can be disclosed to the other side. At the end of the private meeting the mediator will reiterate the confidential nature of the private meeting and confirm what if any information can be relayed to the other party. This is critical as it is the exchange of useful information which progresses the mediation.
A word of caution to mediators as it is important to be vigilant that one does not orally or by actions inadvertently disclose any information relayed by a party without permission as this can be detrimental to the success of the mediation. The duty of confidentiality for a mediator continues even after the mediation ends and thereafter any notes or documents are considered privileged should be destroyed so that a mediator cannot be called to give testimony in any legal proceedings.
In conclusion there is much more which can be said about the role of confidentiality and its contribution to the success of the mediation process however remember these five key takeaways:
A mediator is obligated to protect and maintain the confidentiality of a mediation proceeding not only from beginning to end but it extends thereafter.
Mediation is a voluntary process and if a party refuses to participate because of concerns there may be a breach confidentiality they should not be forced to stay.
Unless express permission is given the mediator cannot disclose information communicated to them by the disclosing party.
The duty of confidentiality continues even when a session ends and extends to all communication both oral and written. After the session all documentation should be destroyed so that a mediator cannot be called upon to give testimony in any legal proceedings.
Mediators must remain vigilant that by their actions, either verbal or physical, so that they do not inadvertently disclose confidential information relayed to them by a disclosing party.
Author: Tanya Goddard
Tanya is the Secretary General of the Arbitration and Mediation Court of the Caribbean (AMCC) - an independent, not-for-profit institution offering Alternative Dispute Resolution services from its base in Barbados to domestic, regional and international commercial clients. An attorney-at-law by profession having 15 years in practice, she is a Fellow of the Chartered Institute of Arbitrators and currently serves as the Vice Chair of the Barbados Chapter. Tanya is also an accredited commercial mediator with the Centre for Effective Dispute Resolution (CEDR) and a mediator with the Court Annexed mediation program in the Barbados Supreme Court, as well as a member of several international ADR organisations. She has presented on various aspects of alternative dispute resolution, including international commercial arbitration and investment law.