The legal basis for confidentiality
Section 10H of the Family Law Act 1975 provides that communications made during FDR are inadmissible in court. This protection exists so parties can speak candidly without fear that concessions or compromises made during negotiation will be used against them later.
What the protection covers
- Statements made by either party during the mediation session
- Documents prepared specifically for use in mediation
- Proposals and counter-proposals exchanged during FDR
- Admissions made in the course of negotiation
Exceptions to confidentiality
The protection does not apply to:
- Disclosures about a risk of harm to a child
- Disclosures about a risk of harm to another person
- Any agreement reached in writing during or following the session
- Information that would otherwise be admissible — confidentiality does not protect pre-existing documents simply because they were brought to mediation
Does the mediator keep notes?
The FDRP keeps session notes for their own records but these are not disclosed to the court. The only document provided to the court is the Section 60I certificate, which records the outcome category — not what was said during the session.
What about agreements reached in mediation?
Any written agreement signed by both parties at the conclusion of mediation is not subject to the confidentiality protection — it can be filed as a consent order or parenting plan. The confidentiality shield protects the negotiation process, not the outcome.
Sources