Mediation—confidentiality and privilege


Published by a ÀÏ˾»úÎçÒ¹¸£Àû Dispute Resolution expert
Practice notes
In-house

Mediation—confidentiality and privilege


Published by a ÀÏ˾»úÎçÒ¹¸£Àû Dispute Resolution expert

Practice notes
In-house
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Confidentiality is particularly important in the context of Mediation to enable parties to participate fully. Mediations are covered by two different levels of confidentiality:

  1. •

    one covering all that is said or happens during the mediation

  2. •

    the other covering the separate private meetings between each party and the mediator

It is worth noting that confidentiality does not normally cover the existence of the mediation, either party and the mediator may refer to the fact that mediation is going to take place/has taken place, without revealing the substance of the discussion.

In addition there are two different types of confidentiality to consider:

  1. •

    Common law without prejudice privilege—as mediations are attempts to settle the dispute, and

  2. •

    confidentiality clauses in the mediation agreement

For guidance with regard to confidentiality in online (remote access) mediations, see Q&A: How do I secure and maintain privacy in a remote access mediation?

Mediation and privilege

Although Rush & Tompkins v GLC was not a mediation case, it is authority for the general common law rule that the ‘without prejudice’ rule:

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Jurisdiction(s):
United Kingdom
Key definition:
Mediation definition
What does Mediation mean?

A form of alternative dispute resolution in which a mediator follows a structured process to facilitate an agreed settlement between parties to a dispute.

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