CONFIDENTIALITY IN
MEDIATIONS
– A WORK IN PROGRESS
ANTHONY A. NOLAN S.C.
Victorian Association for Dispute Resolution
22 July 2010
Scope of Forum
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The Common Law principles of
Confidentiality, Privilege And Admissibility
The Statutory Amendments to the
principles of Confidentiality, Privilege and
Admissibility
Recommendations for Reform
Suggestions to assist Mediators
Confidentiality at Common Law
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An express term of a written agreement
An implied duty
A term of a “quasi contract”
Exceptions to Confidentiality
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Waiver
Enforcement of the Agreement reached
at an ADR process
Public Safety
Fraud and/or Criminality
Admissibility at common law
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A mediator is a competent and
compellable witness
Public policy to protect confidentiality
“Without prejudice” privilege
Exceptions to the without prejudice
principle
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Disclosure with the consent of the
parties
Admissibility of mediated agreements
Allegations of fraud and/or criminality
Mediator reporting obligations
Costs orders and procedural hearings
Statutory Reforms to the Common
Law
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Australian Law Reform Commission
Reports 26 , 38 and 102
Evidence Act (Cth) 1995
Evidence Act (Vic) 2008
Specific Federal and State
legislation concerning mediation
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Section 53B of the Federal Court of Australia Act
1976
Sections 24A and 24B of the Supreme Court Act
1986
Sections 41 and 47B County Court Act 1958
Sections 85 and 92 of the Victorian Civil and
Administrative Tribunal Act 1998
Section 10 H & J of the Family Law Act 1975
Summary of current position
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If the parties to a dispute conduct an ADR process
before litigation then section 131 of the Evidence
Act applies.
If the parties issue proceedings but then engage in
an ADR process such as mediation or early neutral
evaluation before an order is made, then section
131 of the Evidence Act applies.
If the parties issue proceedings in the Federal Court
and the Court orders a mediation then section 131
of the Evidence Act does not apply. Section 53B
of the Federal Court of Australia Act applies.
Summary of current position (2)
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If the parties issue proceedings in the
Supreme or County Courts and are
ordered to mediation or a case conference
then section 131 of the Evidence Act
probably does not apply and the Rules
of Court will limit the evidence which may
be adduced.
If the parties are in litigation in the Family
Court of Australia then section 10H of the
Family Law Act applies and section 131
of the Evidence Act does not apply.
OPENING
This ADR process is not Court ordered.
Therefore section 131(1) of the Evidence
Act provides that what is said or done in
negotiations is inadmissible. But if the
Court determines that a right has been
affected then section 131(2) may apply.
Even then the Court might not admit that
evidence because of section 135 of the
Evidence Act.
OR
This ADR process is Court ordered………..
Suggestions to ADR Practitioners
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Ensure your ADR agreement is well drafted
If it is said that there is a Court order always call for
the order before the mediation to ensure that it is still
current
Redraft your opening statement to accord with the
current legal framework
Lobby the State and Federal Attorneys-General to
achieve consistency in all ADR processes irrespective
of whether a Court order has been made
Continue to rely upon the reluctance of Judges to hear
any evidence of things said or done at mediation
Pay your professional indemnity
insurance
CONFIDENTIALITY IN
MEDIATIONS
– A WORK IN PROGRESS
ANTHONY A. NOLAN S.C.
Victorian Association for Dispute Resolution
22 July 2010