What confidentiality covers
- Statements made by either party during the session
- Documents shared specifically for use in mediation
- Offers and counter-offers exchanged during negotiation
- The mediator's own notes from the session
What it does not cover
- The fact that mediation occurred (though parties can agree to keep this confidential too)
- Pre-existing documents — bringing a document to mediation does not make it confidential if it was already discoverable
- Any written settlement agreement — this is the exception. The agreement itself is not confidential and can be enforced as a contract
Why confidentiality matters in workplace disputes
Employees are more likely to speak candidly about workplace grievances if they know their words cannot be quoted in a Fair Work Commission proceeding or used in a subsequent unfair dismissal application. Employers are more willing to explore flexible settlements when they know a concession in mediation cannot be used as an admission in litigation.
Can the employer share the outcome?
Parties can agree to keep the outcome confidential as part of the settlement — this is common where the resolution involves a financial payment or agreed separation. The settlement agreement typically includes a confidentiality clause binding both parties.
What about workplace investigations?
A workplace investigation is not confidential in the same way — the employer directs the process and the findings are reported. If you are unsure whether an investigation or mediation is more appropriate, see our comparison: workplace investigation vs mediation.
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