Privacy and confidentiality are defining hallmarks of Alternative Dispute Resolution (ADR) processes. For many persons in dispute, the possibility of having their conflicts resolved in private, rather than in the public domain, is an attractive feature and one of the reasons why persons often consider, and sometimes choose, an ADR process rather than litigation which is conducted through the public state courts.
Privacy seeks to limit who can attend proceedings and is a useful precondition to maintaining confidentiality which seeks to limit who can access the information revealed in the proceedings. Confidentiality may be defined as the preservation and non-disclosure of any information obtained by oral or written communication, expressly intended by the source not to be disclosed or which has been obtained under circumstances that would create a reasonable expectation by the source that it not be disclosed.
In the ADR process of mediation, the condition of confidentiality is expected and exercised at two levels. Firstly, at the level of information shared between the persons in the mediation, usually the two parties, their representatives and the mediator. Secondly, at the level of information shared between one party in the dispute, his or her representative and the mediator. This second level is different from some other ADR processes, like arbitration and adjudication, where confidentiality operates at the first level but there is no second level since communications between one party, his or her representative and the arbitrator or adjudicator is restricted and expected to be fully disclosed to the other party and his or her representative.
In mediation, the public may be aware that the parties are in dispute and seeking to resolve the conflict by mediation, but rarely are any of the details of the mediation discussions or the outcome made public without the express agreement of both parties.
Confidentiality in mediation is so fundamental to the process and the outcome that it is introduced from as early as the initial meetings when the parties are still agreeing to mediate and it is established by inclusion into the mediation agreement signed by the parties when they agree to mediate. It may even be reinforced by the signing of a separate confidentiality agreement to maximise the protection of sensitive information.
Despite the signing of the mediation agreement by the parties, mediators will reaffirm, as often as necessary during the proceedings, the parties’ and the mediator’s agreements to keep the discussions confidential and will certainly do so during the initial joint meeting to make absolutely sure that the condition is understood by the parties.
Sometimes in mediation there are private meetings, also called caucuses, between one party and his or her representative and the mediator. These meetings take place with the knowledge of the other party and are usually reciprocated with that other party. In such meetings, the mediator commits to keep confidential any information received from the single party and representative unless given express permission to disclose it to the other party and representative. The mediator will respect the decisions of the party as to what information is to be disclosed to the other party and as to when it is to be disclosed, even if the mediator feels that the resolution of the dispute could be progressed further by disclosure, or progressed quicker by sooner disclosure, of the information to the other party.
This rigid undertaking by the parties and the mediator to maintain confidentiality greatly assists the mediation process, especially during the exploration stage, where wide-ranging options for resolution are being offered by the parties in the full knowledge than no option is agreed until signed into effect in the settlement agreement and that any option not signed into effect will not be divulged in any other forum, or in later proceedings, because of the other party’s and the mediator’s adherence to the confidentiality clause in the mediation agreement and/or any confidentiality agreement.
Adherence to confidentiality also builds trust in the mediator and this trust enables the parties to build confidence and credibility in the process. This confidence and credibility creates a safe, comfortable, private and risk-free space enabling freer communication which will allow the mediator to more easily apply the techniques needed to attain a mutually acceptable, viable and sustainable resolution. By treating all communications made during the process as off the record, parties gain assurance in the confidential nature of the mediation and become willing to share information openly and honestly.
To maintain confidentiality of the process, every person involved in the mediation process, including administrators and mediation centre personnel, will keep confidential and not use for any collateral or ulterior purpose any information received. There is usually no recording or videotaping of the proceedings and all documents, draft resolutions and unsigned settlement agreements are destroyed in the presence of the parties.
Mediation discussions and all materials developed for and during mediation, other than the finalized signed settlement agreement, are generally not admissible in any subsequent court, administrative or contested proceedings. In such proceedings, mediators cannot be called as witnesses nor to provide any materials from the mediation.
Where parties feel that confidentiality is paramount they can vary what was agreed in the mediation agreement and include it in the settlement agreement so as to prevent disclosure of specific sensitive, or potentially embarrassing, information that may have been shared during the mediation process.
There are a few exceptions where confidentiality cannot be preserved by the mediator such as where the law requires disclosure, as with say a Proceeds of Crime Act, or where significant harm to the life or safety of a person is suspected by the mediator or where there is a reasonable serious risk of the mediator being involved in criminal proceedings.
In summary, confidentiality in mediation is an important and fundamental condition for success and steps will be taken to ensure that the condition applies and is maintained from inception, throughout and after completion of the process.
Contributor: Miles F. Weekes, BSc, FRICS, FCIArb
Miles Weekes is an independent dispute resolution specialist based in Barbados. He began his career as a quantity surveyor and practised as a consultant chartered quantity surveyor before gravitating into project and construction management. In 1996 he founded a construction consultancy firm which he managed for twenty years. His experience of administering building contracts, processing claims and resolving disputes has been buttressed by specialist education and training in the alternative dispute resolution (ADR) disciplines and is a complement to his current practice, where he offers ADR services in domestic and international arbitration, construction adjudication, dispute avoidance and dispute adjudication by dispute boards, and civil and commercial mediation. Miles is a Fellow of the Royal Institution of Chartered Surveyors (RICS), a Fellow of the Chartered Institute of Arbitrators (CIArb) and a Mediator accredited by the Centre for Effective Dispute Resolution (CEDR). He has an International Federation of Consulting Engineers (FIDIC) approved Certificate in Dispute Adjudication and a University of the West Indies (UWI) Certificate in Practical Mediation Skills. He is a founding member and former President of the Barbados Association of Quantity Surveyors and a former Chairman of the Barbados Chapter of CIArb. He is the current Chairman of the Caribbean Branch of the CIArb and is actively involved in its planning of training courses and in the publication of its quarterly newsletter.