CONFIDENTIALITY AND MEDIATION
Confidentiality emerges as a powerful and attractive feature of mediation. The private and confidential aspect of mediation is in contrast with the courts and tribunals which are open to the public, and kept on record. Privacy is a big motivator for people to choose mediation over the courts or tribunals. Although mediation is promoted with confidentiality being one of the defining features of the process, it is not in reality as private and confidential as often claimed.
In some circumstances the parties agree that the mediation should not be private and confidential in parts or in whole. Concerning the law there are limits to privacy and confidentiality, for example if their mediation entails abuse allegations, the mediator must disclose this information to the authorities. Also the more parties in a mediation the less likely it will be to maintain all the information as confidential. For example some parties may be required to give an account of the mediation to outside constituents or authorities.
Two competing principles affect the confidentiality of mediations. One principle involves upholding confidentiality as means to encourage people to settle out of the courts and avoid litigation, while the second principle states that all related facts in the mediation should be available to the courts.
A number of reasons exist for keeping mediation private and confidential; these include:
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- makes the mediation appealing
- provides a safe environment to disclose information and emotions
- makes mediation more effective by making parties talk realistically
- upholds mediators' reputations, as it reinforces impartiality
- makes agreement more final, as there is little room to seek review