Keeping mediation confidential is of enormous importance. Confidentiality makes it easier to secure a good settlement, and easier to manage the implementation of that settlement.
Confidentiality promotes an honest approach
“What goes on tour stays on tour.”
The essential rule in mediation is that it is carried out “without prejudice” – if the mediation is unsuccessful then any offers or conciliations that were made during it are no longer on the table. Anything that you say can only be relied on during that mediation.
This frees both parties to talk honestly. It allows you to test a hypothesis, or offer a settlement plan, but without inevitably committing yourself to it.
Confidentiality also permits people to truly speak their feelings. In the context of many workplace disputes this often catalyses finding the best solution.
How can you ensure confidentiality?
Both parties, and any other lawyers or persons present at the mediation, will sign an agreement stating that they will keep everything that is said in the mediation strictly confidential. If one party feels that their confidentiality was breached, and that they suffered financial or other harm as a result, then they can take legal action for breach of contract.
The intrusion into the private affairs of individuals
For individuals caught up in a dispute, the intrusion into their private lives is very unwelcome and threatening. Nobody wants the general public to know their financial or business affairs. In a workplace setting then colleagues can potentially be hostile, and can ostracise or openly criticise them.
Mediation offers these individuals a cloak of confidentiality that takes the handling of their dispute, and the agreed solution, away from public scrutiny.
The importance of avoiding public attention
Sometimes it is a priority to avoid public attention. The parties in a dispute certainly to not want other colleagues at work (or in the industry) to know what the final settlement was. For entertainment and royalty contracts, high-profile negligence cases and where there is danger of setting a precedent this is particularly important.
Richard has worked in the NHS for most of his career and is very aware of the importance of strict confidentiality