Confidentiality in mediation : a legal analysis

Abstract

Mediation is well-established as a way in which parties settle disputes worldwide. Although mediation has not grown in South Africa to the extent that it has in countries like Australia and the United States of America, the potential for growth is immense. One of the crucial elements of mediation is confidentiality and the promise of confidentiality is offered to all parties involved in mediation. Confidentiality should be an integral part of mediation but many questions still remain as to exactly how, and to what extent it should be applied during mediation. Those are the issues this study aims to address. It strives to provide a legal analysis of confidentiality in mediation (or mediation confidentiality—the two terms are used interchangeably in this study). In order to do provide a legal analysis, the elements of mediation as well as the nature and scope of mediation are discussed. Particular emphasis is placed on confidentiality and a study of the legal sources of mediation was undertaken in an attempt to fully grasp the legal position of confidentiality in mediation. The agreement to mediate (the contract) is used as the starting point and the common law aspects of the without prejudice principle and legal professional privilege are also discussed. The application of these principles, the role of public policy and the interests of justice are considered. The exceptions to the application of these principles with regard to mediation confidentiality are also studied and expounded upon in this study. Additionally, existing legislation with regard to confidentiality in mediation is also explored in order to provide more clarity. The study proposes that South Africa, as a country which is still very much finding its way with regard to mediation confidentiality, can learn from countries such as the United States of America and Australia. The insight gained from this study can help to craft a satisfactory manner in which to deal with mediation confidentiality in South Africa. Since there is a great deal of uncertainty regarding the legal position of confidentiality in mediation in South Africa, the study also considers mediation confidentiality in other spheres such as the state of California (United States of America) and the state of New South Wales (Australia). In California a very strict, narrow and literal approach to mediation confidentially is followed, while in New South Wales a more balanced approach is followed. Hopefully this study will be instrumental in assisting to offer a meaningful legal analysis of mediation.