Why Confidentiality Is The Lifeblood Of Mediation

Introduction:

The two central pillars of mediation are voluntariness and confidentiality. While the former ensures that parties participate of their own free will, the latter provides the safety net that makes such participation meaningful. Without the assurance that the information they divulge will be carefully managed and not weaponised against them, parties will naturally withhold key facts, thereby stifling any real hope of resolution.

In most instances, disputes arise from a breakdown in communication. Communication is more than the mere transmission of information. It is a cycle of how information is received, processed and then applied. When a break occurs at any of these stages, whether due to poor delivery or distorted interpretation, a dispute is inevitable.

In a high-conflict setting, parties often loathe being blamed. A poor communicator will blame the receiver for misunderstanding, while the receiver blames the sender for deliberately creating ambiguity when they could have conveyed their intent more clearly. In this situation of defensive posturing, parties enter mediation not to resolve, but to win, maintain their position, or prove the other side wrong. They are often hesitant to admit to any confusion or error for fear of legal prejudice. This is why a constant reminder of confidentiality is essential. It grants parties the freedom to express feelings and offer concessions without the fear of future repercussions.

The Two Layers of Confidentiality:

Confidentiality in mediation is not a singular concept. Under the Arbitration and Mediation Act, 2023, confidentiality is divided into two distinct layers of protection. The first layer is confidentiality in mediation proceedings, which regulates the flow of information between the parties and the mediator. It ensures that if a party shares a sensitive concession or information with the mediator in a private session, the mediator is legally prohibited from disclosing it to the other side without the party's express permission. The first layer of confidentiality is aptly covered in section 75 of the Arbitration and Mediation Act, 2023, which provides as follows:

Although section 75 of the Arbitration and Mediation Act, 2023,  seems to suggest that a mediator may disclose the substance of information received from a party to the other party, to maintain trust, a skilled mediator should proactively seek permission before relaying sensitive points, as this will help to protect the confidentiality of the private sessions.

The second layer of mediation is covered under sections 76 and 77 of the Arbitration and Mediation Act, 2023, and it serves as a shield against future litigation or arbitration proceedings. It provides that the parties will keep all information relating to the mediation proceedings confidential and not divulge any information gathered through the process as evidence in court or at arbitration. The only exceptions to the rule on confidentiality are when the disclosing party has a duty imposed on them by the law to disclose, or for the purpose of implementing the settlement agreement, or necessary for the prevention or concealment of a crime, or to protect public order; only to the extent required by the law.

Conclusion:

The confidentiality framework under the Arbitration and Mediation Act, 2023,  is designed to transform mediation from a box-ticking exercise into a genuine platform for resolving disputes. By protecting parties and creating a platform for them to participate freely and in good faith, the Arbitration and Mediation Act, 2023,  emphasises mediation as an effective model of resolving complex disputes. Therefore, parties and their counsel should recognise that the confidentiality framework was enacted to assist the parties in building the confidence necessary for a successful settlement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.