Mediation: the limits of confidentiality

The overall goal of mediation is to share information, not withhold it. Confidentiality within the mediation can be a useful psychological tool to reduce anxiety and build faith in the process.

While, generally, information received during mediation cannot be introduced later as evidence, that does not stop people from indirectly using what they hear as part of litigation strategy. Parties ought to be mindful that valuable information about the other party’s demeanor and viability as a witness is not limited by confidentiality. 

Occasionally, a party may want to negotiate about a confidentiality issue before proceeding with mediation. If a party is worried about discussing or releasing something in joint session, they can save it to discuss with the mediator in private session. The mediator can help them decide how to deal with the matter.

Confidentiality of the agreement reached in mediation is a separate matter. Generally, trying to keep the agreement confidential is discouraged as administratively impractical and likely to undermine the effectiveness of enforcement of the agreement.

© 2015 Phillip Street Chambers Pty Ltd