Is Mediation Confidentiality Still Safe?

Confidentiality has long been the bedrock of mediation. As in most legal settings, what was said in mediation remained in mediation, completely private and inadmissible in court. However, new trends in court ordered mediation may threaten this cornerstone of the practice.

As judges and other institutions increasingly order opposing parties to attempt mediation ahead of potential trial, many mediators wonder if what’s said behind closed doors could soon be aired in open court. With mediation becoming more common, this practice presents serious questions for the legal community at large.

Courts order mediation for many reasons. One, it takes pressure off over loaded dockets. Two, it saves taxpayers money. More importantly though, they know mediation has many benefits over traditional trials: they’re less costly, they take less time, and the level playing field often yields more mutually amendable results. (Please refer to my previous post on this subject for more information on why mediation is preferable to trials.)

Most of all, mediation is often preferred because it’s private. Rather than entering testimony into the court record, mediation occurs off stage. New court ordered mediation may change that, as some existing laws and even subjective judge’s opinions can supersede confidentiality agreements. The result is that mediators may be called to testify on sensitive matters.

Here’s one notable example: 2009’s Farm Assist Limited (In Liquidation) v The Secretary of State for the Environment, Food and Rural Affairs. This case stems from an earlier one in which the Department of Environment, Food and Rural Affairs (DEFRA) sued FAL over the foot and mouth breakout of 2001. The two sides were ordered into mediation.

Later, once the mediation was complete and the matter appeared settled, FAL filed another case arguing it only agreed to the parameters because of economic duress. DEFRA disagreed. That left only the mediator. She argued she was bound by confidentiality, but the judge pointed out that mediation confidentiality is created by the participants and can be broken at any time.

The participants had waived their confidentiality, yet still the mediator stuck by the confidentiality clause. But the judge refused, ordering her to testify and setting a precedent that sent shivers through the mediation community. And it’s not just happening here in the UK. The U.S. had a similar case: 1999’s Olam v. Congress Mortgage Co. in California, where mediators were called to testify against their client in a loan default case.

While many states in America are trying to mend such loopholes via legislation that creates standards for mediation confidentiality, movement here in the UK has been slower, even as mediation becomes more common. With more clients and judges opting for mediation, do we need stricter laws protecting mediation participant confidentiality?

In my opinion, confidentiality must remain the bedrock of mediation. It is the promise of privacy and trust that makes mediation such an effective and efficient legal tool. It’s the candor of mediation that allows both sides to reach amenable resolutions. To remove confidentiality from the process would severely undercut its efficacy.

That said, I do believe there could be scenarios in which the court may need to pierce confidentiality. Note my usage of “could;” only in matters of utmost importance, i.e. public safety, do I think it could be permissible to break mediation confidentiality.

In such cases, mediation would be akin to the compact between priests or psychiatrists and their parishioners or patients. These are protected except when confidentiality could lead to harm. Then and only then should confidentiality, mediation or otherwise, be broken.

I’m interested to see how this debate unfolds in the months and years ahead. Whatever happens, it will definitely be worth tracking and discussing.

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