Abstract
While mediation is all about communication, its boundaries—in many respects—need to be established. Confidentiality is at the heart of the mediation process. It encourages parties to mediation to speak freely and openly. It is essential for the success of mediation both in individual cases and as an institution—a popular dispute resolution method alternative to litigation. This article adopts a particular focus on the confidentiality-related regulations and problems in the EU law and its Member States. While the vast majority of European countries have complied with the 2008 EU Mediation Directive, its requirements may be viewed as insufficient. Article 7 of the Directive provides for a minimum degree of compatibility and very basic standards only. While the current regulations in the Member States differ vastly, so do the consequences of a breach of the duty and a leak of confidential information. This leads to uncertainty and accidental results in cross-border mediations within the EU. Such a situation is unsatisfactory and is even made worse by the fact that the Directive allows member states to decide freely on the qualifications, requirements and other regulations applicable to mediators. Therefore the article calls for further harmonization to establish higher standards and greater clarity.
Highlights
One of them is “to promote frank and open discussions of parties by ensuring confidentiality of the process, limiting disclosure of certain information and facts raised in the conciliation in other subsequent proceedings subject only to the need for disclosure required by law or for the purposes of implementation or enforcement”
Does it encompass the parties to a mediation process among those obliged to respect confidentiality (“a party to the conciliation proceedings, the conciliator and any third person, including those involved in the administration of the conciliation proceedings”—Article 10(1)), but even lists them in the first place, before the mediator
The UNCITRAL Model Law attempted to tackle the latter problem in Article 10(5): Subject to the limitations of paragraph 1 of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a conciliation
Summary
The proverb “Reden ist Silber, Schweigen is Gold” (Speech is silver, silence is golden) fits well into the context of mediation. While state court proceedings are in principle open to the public in most jurisdictions, the rule of mediation is opposite. It is a private procedure by nature. While the current regulations in the Member States differ vastly, so do the consequences of a breach of the duty and a leak of confidential information This leads to uncertainty and accidental results in cross-border mediations within the EU. Such a situation is unsatisfactory and is even made worse by the fact that the Directive allows member states to decide freely on the qualifications, requirements and other regulations applicable to mediators.. Such a situation is unsatisfactory and is even made worse by the fact that the Directive allows member states to decide freely on the qualifications, requirements and other regulations applicable to mediators. the article calls for further harmonization to establish higher standards and greater clarity
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