Confidentiality applies to many aspects of mediation, including:
• the fact that a mediation is taking place,
• the fact that a party has made an offer to mediate,
• the documents and statements exchanged at a mediation,
• statements made by a party to the mediator in a caucus session,
• the reasons why a mediation was not successful,
• the terms of a settlement agreement, or even the fact of its
• existence, and the mediator’s notes.
Confidentiality in mediation also ensures that the mediator cannot be called as a witness in any subsequent legal or administrative proceeding, or act for the parties in the dispute.
This chapter discusses the reasons why confidentiality in mediation is so important, and identifies practical steps in how to secure it. Given the work that the United Nations Commission on International Trade Law (UNCITRAL) has done in producing a Model Law on International Commercial Conciliation (the UNCITRAL Model Conciliation Law) and the brand new proposal by the European Commission for a Directive on certain aspects of mediation in civil and commercial matters (the draft EU Directive), mediation’s star is in the ascendant.
Why is confidentiality so important to mediation? The short answer is that it is a sine qua non of the process. Without confidentiality mediation cannot be effective.