How confidentiality is protected
Commercial mediation confidentiality operates at two levels:
Contractual protection: The mediation agreement (signed before the session begins) includes a confidentiality clause binding all participants — the parties, their legal representatives, and the mediator. Any party who breaches this clause may be liable in damages.
Legislative protection: In several Australian states, the confidentiality of mediation communications is reinforced by legislation — for example, under the Evidence Act in NSW and Victoria, mediation communications are protected from disclosure in court proceedings. Confirm the applicable legislation with your legal adviser.
What confidentiality covers
- All offers and counter-offers made during the session
- Concessions and admissions
- Documents produced specifically for the mediation (such as confidential position papers)
- What the mediator says during private meetings (caucus)
- The fact that a particular settlement position was taken
What confidentiality does not cover
- The settlement agreement itself — if the parties intend for the agreement to be enforceable, it must be capable of being put before a court if breached. The agreement is confidential as a document but not non-existent.
- Pre-existing documents produced in the mediation that were already disclosable — producing a document at mediation does not make it privileged if it was not already.
- Evidence of criminal conduct or child abuse — confidentiality does not protect disclosures that a party is legally required to report.
Without prejudice privilege
In addition to the mediation agreement, settlement discussions conducted in the context of a genuine attempt to resolve a dispute are generally protected by without prejudice privilege at common law. This means that even if the mediation agreement were silent, the communications would generally not be admissible in court. The two protections — contractual and common law — reinforce each other.
For questions about how confidentiality works in family mediation, see: is family mediation confidential?
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