What!? Isn’t What I Said in Mediation a Secret?! - Part 2

In our last post, we spoke about the scope and sources of confidentiality and privilege.  Today we will talk about the consequences of breach of those limitations.

CONSEQUENCES OF BREACHING CONFIDENTIALITY

Even if a party confirms that confidentiality protects information disclosed in mediation, the party also needs to understand what would happen if the obligation were breached.  Courts have different views about what makes a party whole if a breach occurs.  For example, the remedy might be some kind of compensation. Some jurisdictions, however, see money as an inadequate remedy for non-monetary harms.  That may mean no adequate remedy would be possible.  In other jurisdictions, the remedy might be some kind of order by a court to do or not do something to try to undo that harm or at least do no further harm.  Some courts, however, do not have the power to compel or ban conduct.  Another potential remedy might be paying over to the harmed party any benefit the disclosing party or recipients of the information gained by disclosure.  This is more punitive in nature – seeking to undo the benefit realized from the breach, rather than seeking to undo the harm. It is therefore important to ask what would happen if a party didn’t abide by its commitment to confidentiality in the state, country or other jurisdiction where that breach is likely to occur.

CONSEQUENCES OF BREACHING PRIVILEGE

Privilege is held by the disclosing party in most instances, but in some jurisdictions, it is held by the mediator instead.  It is therefore wise to confirm who holds the privilege to refuse to permit disclosure in one’s mediation and therefore the right to waive it.  It is also important to know what is required to waive it (to make sure one doesn’t waive the right unintentionally). Often the privilege is asserted when the other party tries to compel disclosure of information shared in a mediation.  In that instance, the party with the privilege can refuse disclosure and prevent a breach by objecting.  Arguing over such issues, however, costs money and time.  Hence, even in jurisdictions where the privilege exists and is clear, and where a party knows how to avoid waiving it, protecting against disclosure can be time consuming and expensive.  Some mediation parties therefore talk at length with legal counsel before a mediation to decide just how much essential information to disclose in a mediation.

If you gain only one thing from reading these posts on confidentiality and privilege, it should be to do your homework before relying on any statement that a mediation, and what you share in mediation, is confidential.