Piercing the Veil of Confidentiality in Mediation to Ensure Good Faith Participation – An Untenable Position?
(2019) 31 Singapore Academy of Law Journal 709
34 Pages Posted: 3 Jun 2020 Last revised: 22 Jun 2020
Date Written: August 7, 2019
Confidentiality is a foundational characteristic of the mediation process, a key feature that distinguishes mediation from litigation. However, the veil of confidentiality has been lifted for several purposes, including the courts’ assessment of the parties’ conduct so as to ensure good faith participation in the mediation. This article discusses how the mediation confidentiality and good faith participation may be concurrently promoted. It reviews the current approaches to upholding the general confidentiality and inadmissibility of mediation communications, and proposes ways to ensure that the veil of mediation confidentiality is pierced in highly circumscribed circumstances. It then examines the issue of whether to mandate good faith participation in mediation. This author proposes the articulation of a good faith obligation in order to send the correct signal about the expected conduct within mediation. However, the author also suggests that sanctions be imposed only for breaches of objective requirements, and the presence of highly egregious conduct within mediation. Otherwise, the veil of confidentiality would be readily lifted, to the overall detriment of the mediation process.
Keywords: mediation confidentiality, without prejudice, Mediation Act, good faith
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