Mediation Confidentiality Research Articles

Strengthening the Legal Guarantees of Mediation Confidentiality with Contractual Mechanisms

Strengthening the Legal Guarantees of Mediation Confidentiality with Contractual Mechanisms

Confidentiality of the Mediation Process and Ethical Dilemmas

Scientific research is dedicated to the protection of the legal foundations of Confidentiality in the process of mediation and ethical dilemmas. The paper discusses the negative and positive aspects of mediation confidentiality, the importance of confidentiality protection.
 In addition, the purpose of the study is to first determine the specifics of the national model regarding the confidentiality of mediation, and then to define the approaches of international acts on the confidentiality of the mediation process, the legislative regulation of different countries (Germany, Austria, etc.). The study is based on the concept that confidentiality is an integral part and the main principle of mediation that stimulates certain positive aspects (sincerity of the parties, fairness of the agreement, neutrality of the mediator, effectiveness of mediation, etc.). Accordingly, the paper emphasizes that there is a logical chain between these factors. Confidentiality connects these circumstances with one another and plays a central role in mediation.
 At the same time, protecting Confidentiality increases the risk of damaging the public interest. However, in parallel with the protection of Confidentiality, the principles of legality and fairness should not be violated while ensuring that the public interest is protected. The activity of the mediator also requires the resolution of ethical dilemmas, which involves a thorough study of each case and taking into account specific circumstances. Accordingly, each case should be evaluated on a case-by-case basis, and it must be determined to what extent another value may override the interest of protecting Confidentiality in mediation.
 Here, the article also deals with the legal grounds for limitation of Confidentiality, in the presence of which the invasion in Confidentiality can be considered legitimate. Determining the legitimacy of violation and restriction of confidentiality is important for distribution of the burden of proof between the parties. Simple, understandable and clearly outlining the grounds for confidentiality restriction is essential to assess this issue correctly. This is even more relevant for the Georgian model, which envisages a fairly wide range of confidentiality restrictions on the one hand, and requires the observance of proportionality, on the other hand. In this reality, the mediator should try to find a golden mean in his activities so that the protection of one value does not lead to an unreasonable encroachment of another value.

Присоединение как табу в коммуникативном поведении медиатора

The article is devoted to the description and justification of prohibitions in the communicative behavior of a professional linguistic personality. The communicative taboos of a mediator as a neutral mediator in a conflict/dispute are considered. Attention is paid to the prohibitions associated with the mediator joining the parties in the negotiation process.
 The impossibility of direct observation of the mediator's communicative behavior in connection with the principle of confidentiality in mediation led to the choice of research methods and material: linguopragmatic and discourse analysis of open mediation sources, participant observation and intraprofessional communication with mediators.
 The author examines the implementation of the principle of neutrality in mediation and defines the value guideline of the mediator's communicative behavior – non-alignment with the parties. There are prohibitions that characterize joining as a strict taboo of the mediator's communicative behavior: verbal (language and speech) prohibitions, thematic and non-verbal (sound, mimic and gesture) prohibitions, spatial-temporal and organizational prohibitions.
 It is noted that joining the parties significantly affects the process and results of mediation. The mediator's partiality and emotional involvement can lead to the loss of confidence of the parties and to the end of negotiations. The high taboo nature of the mediator's communicative behavior requires from the specialist of this communicative profession the ability of self-reflection and self-control.

‘The Greatest Victory’? Challenges and Opportunities for Mediation in Investor-State Dispute Settlement

Abstract This article identifies the rise of mediation as a reaction to the ‘public legitimacy crisis’ experienced by arbitration in investor-State dispute settlement (ISDS) and, more broadly, as a general symptom of the contemporary backlash against international adjudication. It offers an analysis of the nine main challenges that mediation has traditionally faced in ISDS, together with a notice of how recent developments have been contributing to unlocking its underutilized potential. It illustrates the support of numerous States, and in particular of Asian States led by China for dispute prevention and mediation, and provides a critical analysis of some of the limitations of the mediation-related reform options in the agenda of UNCITRAL’s Working Group III including the development of model clauses, a multilateral international investment law advisory centre and a multilateral investment court. The article also examines the recent UNCITRAL secretariat’s guidelines addressing some of the other obstacles faced by mediation in ISDS, including, but not limited to, governance, legislative and policy impediments and the tension between confidentiality in mediation and transparency as a structural goal. The conclusion recaps the main findings of the article and stresses the minimum common denominator quality of mediation as a means to restore balance in a reformed ISDS ‘ecosystem’.

Confidentiality in Mediation in Resolving Property Disputes: Reality and Challenges

Mediation is a process based on the interests of the parties, which increases the mediator's rights to the extent permitted by the disputing parties. The story of the apple heart and rind related to mediation also seems to be easily understood, but, at the same time, it is considered to be a complex problem. In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In fact, this regulation requires a change to specify clearly what type and amount of information a mediator is required to provide to a minister. Also in This work is explained the legitimate grounds for breach (break) of confidentiality. in the course of obligation to disclose information by another court decision, the court should only require the disclosure of information directly related to the case from the mediation participants. At the same time, the restriction that information should be disclosed only to an adequate and proportionate extent to a lawful purpose can be considered as a useful tool for the protection of a legitimate purpose – the confidentiality of information. Ultimately one of the important functions of a mediator for the successful completion of mediation in business disputes is to focus on the interests of the parties.

THE IMPORTANCE OF USING MEDIATION IN BUSINESS DISPUTES DURING A PANDEMIC

English Abstract: In the conditions of the pandemic, the timely settlement of business disputes, which is achieved with the help of mediation, became especially important. The aim of the study is to determine the importance of the institution of mediation in the context of the spread of the coronavirus and the overload of business dispute cases in the courts. The is- sue is interesting given the legislative changes in mediation. Research has shown that mediation has become particularly attractive to businesses during the spread of the coronavirus. This was due to the following features: Unlike litigation, mediation is faster, cheaper, calmer and more effective process focused on the interests of the parties. Mediation confidentiality is aimed at protecting confidential data and maintaining the ongoing relationship between the parties, as well as strengthening the parties’ trust in mediation. By European standards, Georgia has created a new reality. In 2020, a new law on mediation came into force, which has already been successfully used by several businesses and resolved ongoing disputes over the years. However, the use of remote mediation has become urgent in the face of the threat of the spread of the coronavirus. Procrastination in litigation during a pandemic can have major negative economic consequences for businesses. Therefore, in terms of prevention of negative effects and timely review of disputes, it is advisable to use a tool of mediation. Georgian Abstract: პანდემიის პირობებში განსაკუთრებით აქტუალური გახდა ბიზნესდავების დროული განხილვა-გადაწყვეტა, რაც მიიღწევა მედიაციის დახმარებით. კვლევის მიზანია, დადგინდეს, როგორია მედიაციის ინსტიტუტის მნიშვნელობა კორონავირუსის გავრცელებისა და სასამართლოებში ბიზნესდავებზე საქმეების გადატვირთულობის პირობებში. საკითხი საინტერესოა მედიაციაში განხორციელებული საკანონმდებლო ცვლილებების გათვალისწინებით. კვლევამ აჩვენა, რომ კორონავირუსის გავრცელების დროს მედიაცია განსაკუთრებით მიმზიდველი გახდა ბიზნესისთვის. ეს განაპირობა შემდეგმა თავისებურებებმა: სასამართლოში საქმის განხილვისგან განსხვავებით, მედიაცია არაა დროში გაწელილი, არის იაფი, მშვიდი და ეფექტიანი პროცესი, რომელიც მხარეთა ინტერესების გათვალისწინებაზეა დაფუძნებული; ამასთან, მედიაციის კონფიდენციალობის მიზანია როგორც საიდუმლო მონაცემების დაცვა და მხარეთა შორის მიმდინარე ურთიერთობის შენარჩუნება, ისე მხარეთა ნდობის გამყარება მედიაციის მიმართ. ევროპული სტანდარტების გათვალისწინებით, საქართველოში შეიქმნა ახალი რეალობა. 2020 წლის დასაწყისიდან ძალაში შევიდა ახალი კანონი „მედიაციის შესახებ“, რომლითაც უკვე რამდენიმე ბიზნესსუბიექტმა წარმატებით ისარგებლა და წლების განმავლობში მიმდინარე დავები მოაგვარა. ამასთან, კორონავირუსის გავრცელების საფრთხეების პირობებში აქტუალური გახდა დისტანციური მედიაციის გამოყენება. პანდემიის დროს სასამართლო პროცესების გაჭიანურებამ შეიძლება დიდი უარყოფითი ეკონომიკური შედეგები გამოიწვიოს ბიზნესსუბიექტებისთვის. ამიტომ უარყოფითი ეფექტების პრევენციისა და დავების დროული განხილვის თვალსაზრისით, მიზანშეწონილია მედიაციის ინსტრუმენტის გამოყენება.

THE IMPORTANCE OF THE PRINCIPLE OF CONFIDENTIALITY IN MEDIATION

In the modern world, mediation is becoming an increasingly popular alternative to formal adjudication. Around the world, large-scale mediation programs have emerged, which deal with a huge number of both civil and criminal cases. As mediation becomes more widely used as an alternative method of dispute resolution, a new problem has emerged that threatens its continued viability-confidentiality. Confidentiality is a fundamental characterristic of the mediation process, a key feature that distinguishes mediation from litigation. The principle of confidentiality in mediation is a framework that enhances the security of the parties by giving them confidence that they are in a safe place where what is said and done during the process cannot be disclosed or used against them outside the process. This gives them the freedom to negotiate and increases the chances of successful mediation. This article explains the importance and role of the principle of confidentiality in the mediation process. Key words: alternative dispute resolution, mediation, confidentiality

Contract as a Basis for Mediation Confidentiality

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning

The work is dedicated to specific legal regime of confidentiality protection in the mediation process. To this end, not only the scope of the concept of confidentiality is explored, but also the peculiarities of its protection in mediation and in court. Legislative news and the standards recognized by the law “on mediation” is analyzed in this context. It is noteworthy, that due to several factors mediation becomes especially attractive for business in a pandemic conditions: unlike hearing the case in court, mediation is fast, cheap, calm, flexible and effective dispute resolution process aimed at maintaining the current relationship between the parties through mediation confidentiality. Given the confidentiality of the mediation process, the parties have a legitimate expectation that the information they disclose will remain confidential. It is confidentiality that empowers the trust of the parties towards mediation. At the same time, analysis of the law reveals that confidentiality is not absolute during mediation and it may be restricted in certain exceptional cases. Taking into account European experience and the obligations under the Association Agreement in Georgia was accepted the law “on mediation” in which it was formed exceptional cases of confidentiality restrictions. Moreover, disclosure of confi dential information is considered justified in exceptional cases if the preconditions established by law are met. It is advisable to evaluate the given cases as carefully and individually as possible. In this way, it will be ensured that the restriction of confidentiality, on the one hand, directly affects the areas defined by law, and on the other hand, as a result of its misinterpretation will not lead to the extension of the exception to the restriction and thus violate confidentiality.

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

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.

Confidentiality and Privilege for Family and Child Protection Mediation: A Roadmap for Navigating the Innovation, Inconsistency and Confusion

This article will identify the inconsistency and confusion in mediation regarding the definition of mediation, the role of the mediator, and the difference between mediation confidentiality and privilege. Further, it will discuss the confusion and inconsistency in the protection of mediation communication, specifically regarding the definition of mediation communication, the time frame for protected communication, waiver of the protections and exceptions to protected mediation communication. It will provide a roadmap and fact pattern for determining whether mediation communications are protected and if so, the protection they are afforded. Lastly, it will offer recommendations so parties, professionals and the courts may better understand and reap the benefits of mediation.

ПРОБЛЕМА ЗАКОНОДАВЧОЇ РЕГЛАМЕНТАЦІЇ ПРИНЦИПУ КОНФІДЕНЦІЙНОСТІ В МЕДІАЦІЇ

The article deals with the analysis of the problem of normative regulation of the principle of confidentiality of mediation in Ukraine. The importance of confidentiality for the mediation process is recognized at the international level, in particular in the Directive №2008/52/ EU of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters in 2008. For a successful mediation procedure, it is important for the participants to be completely open and confident in the proper protection of information that becomes familiar during its implementation. Therefore, the legal regulation of the secrecy of mediation must be perfect, as it is a key factor in building public confidence in the new institution of peaceful dispute resolution. The author explores approaches to understanding of the concept of "confidentiality". The international regulation of the principle of confidentiality of mediation and foreign experience of its enshrinement in the regulations of countries such as Spain, Georgia, Kazakhstan, Russia and Belarus are analyzed. It is established that the current domestic legislation and the draft law on mediation do not contain sufficient guarantees for the implementation and maintenance of the principle of confidentiality. It is concluded that there is a high level of threat of abuse in the field of mediation confidentiality. The author identifies the need for a reasonable restriction on non-disclosure of the secrecy of mediation under certain conditions and proposes the main directions of improving the regulatory framework for the principle of confidentiality of mediation. Among them there are: the definition of a clear list of exceptions to the principle of confidentiality, detailed regulation of the liability of participants in the procedure for violating the secrecy of mediation, improving the legal status of the mediator in terms of confidentiality and more.

Singapore Case Note: Interpretation of MSAs and Inadmissibility of Evidence from Mediation

In this post on the Kluwer Mediation Blog, the 2019 decision of the Singapore High Court, Jumaiah bte Amir and Another v Salim bin Abdul Rashid, is analysed. The decision is relevant to the drafting of mediated settlement agreements (MSAs) as it deals with interpretation; it is also indicative of the Singapore courts’ approach to mediation confidentiality.

PRINCÍPIO DA CONFIDENCIALIDADE E PRINCÍPIO DA PUBLICIDADE: INCIDÊNCIA E LIMITES SOBRE AS TRATATIVAS CONCILIATÓRIAS NA ADMINISTRAÇÃO PÚBLICA

O presente trabalho se propõe a construir um adequado modo de aplicação dos princípios da confidencialidade e da publicidade nos procedimentos de mediação em que é parte a Administração Pública. Trata da cedência recíproca entre os princípios, de modo a resguardar os direitos e interesses dos particulares e permitir o amplo controle e fiscalização da Administração Pública pelos administrados. Para isso, busca na doutrina o entendimento acerca do conteúdo e função do princípio da confidencialidade na mediação, a fim de melhor compreender como deve ser encarado nas mediações que se travam na Administração Pública. Aborda as experiências da mediação no poder público nos Estados Unidos e países europeus, a fim de avaliar o modo como a questão vem sendo tratada ali, e também na doutrina brasileira. Traz o direito público consensual como campo teórico que embasa a o que se entende ser a visão adequada sobre o tema.

Everyone's a Critic: The Public Speaks on Attorney Malpractice and Mediation Confidentiality

The tentative recommendation approved in June based on Study K‐402 by the California Law Revision Commission—which, if passed into law, would allow new state mediation confidentiality exceptions for proving attorney malpractice—has brought about mixed reviews from ADR professionals, organizations and even state departments operating in the field of mediation.

Where Are the Risks? An Assessment of Recent Developments in Mediation Confidentiality

Confidentiality is a key ingredient in a successful mediation. Not surprisingly, mediation agreements typically provide for stringent confidentiality protection, prohibiting the participants from any subsequent disclosures of information shared in the course of the mediation process.

Confidentiality in Mediation

Article 7 of the Mediation Directive sets a confidentiality rule, provides minimum regulation regarding it and urges Member States to tolerate it and create a set of national rules in order to protect confidentiality in mediation. The aim of this article is to analyse the principle of confidentiality in mediation, to explain its particular qualities and assess the importance of it. Mediācijas direktīvas 7. pants nosaka konfidencialitātes principu, nodrošina tā obligāto regulējumu un mudina dalībvalstis to pieļaut un cienīt, kā arī izveidot nacionālus likumus, lai aizsargātu konfidencialitātes principu mediācijā. Šā raksta mērķis ir izvērtēt konfidencialitātes principu mediācijā, noskaidrot tā specifiku un novērtēt nozīmi.

Table of Contents

Abstract Arbitration Get Back—Return Arbitration to Its ADR Roots by M. Scott Donahey CPR News September/October Meetings and Events Mediation Another Look at Mediation Confidentiality: Does It Serve Its Intended Purpose? by Eric van Ginkel International Arbitration Arbitration Emerging to Resolve International Financial Disputes by Suyash Paliwal, CFA The Master Mediator / Part 1 Bias, Fallacies & Decision Errors—Processing Information: Sights, Sounds and Framing by Robert A. Creo ADR Briefs Even in California: State's Right to Refuse Enforcement of Class‐Action Waivers on Public Policy or Unconscionability Grounds Is Preempted by FAA—Iskanian v. CLS by Lia Iannetti Material Relevant to US Litigation Not Automatically Shielded by Arbitration Confidentiality: Veleron Holding, B.V. v. Morgan Stanley & Co. by Lia Iannetti Briefs in Brief

Nihil silentio utilius: confidentiality in mediation and its legal safeguards in the EU Member States

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.