Confidentiality and Privilege in Mediation: Concepts in Need of Better Regulation and Explanation

Abstract

This article compares the regulatory framework (consisting of common law, agreements to mediate and legislation) governing the allied concepts of confidentiality and without prejudice privilege as they apply to the mediation of non-family law civil disputes in Queensland, New South Wales and Victoria. The analysis demonstrates that there is: lack of uniformity in regulation between, and within various jurisdictions; inconsistencies and conflict between multiple sources of regulation; illogical gaps in the framework; and fragmented and inaccessible explanations where accessibility refers to the ability of mediation participants to find and understand relevant provisions. These features of the regulatory system explain, in large part, why mediation providers often fail to give the parties clear and comprehensive explanations about these important mediation concepts. The article concludes by highlighting some of the issues around which reform efforts need to be focused if the regulatory system, and access to relevant information, is to be improved.