News & Insights

A recent court case has re-affirmed that in most cases Mediation notes or a Mediation Summary cannot be used as evidence in court proceedings.

The confidentiality of the mediation discussions is central to the mediation process and one of the reasons why mediation works in so many cases.  Parties to mediation are able to explore options and consider compromises without the fear that they might say the wrong thing or that a tentative discussions might later be held against them in court.

The court case involved the father seeking to include details of discussions had in mediation, as well as an order for the mediator’s notes, to be disclosed and for a witness statement to be filed by the mediator.

The father’s application in relation to the above issues failed.

The court recognised the confidential nature of the mediation discussions and went to great lengths to re-iterate the reasons why that confidentiality needed to be upheld;

• to preserve the benefits that mediation offers and
• to enable mediators to carry out the valuable work that they undertake

It is pleasing that the court were able to understand the importance of the confidentiality principle and the terms of the Agreement to Mediate, which clients are asked to sign up to before mediation begins.  It is indicative of the growing awareness of the benefits of mediation and the important role that it has within the family justice system.

An exploration of the issues and options to reach a compromise are far more likely in a confidential setting as opposed to one where every statement made becomes ammunition to build a case against the other parent.  Mediation encourages co-operation, open-mindedness and problem solving and confidential discussions are key to achieving that outcome.