Introduction

Confidentiality is one of the important philosophical tenets of mediation. A party's willingness to attend mediation and participate in good faith may be predicated on the whole process being confidential. There may be commercial or personal reasons for the insistence on confidentiality but whatever the reason may be, it seems that a party's willingness to discuss the dispute in a full and frank manner may well be determined by whether there are guarantees in place that what is discussed will not be disclosed to the world at large and not used against the disclosing party in subsequent litigation. Those guarantees may take the form of common law or statutory assurances of confidentiality or a contractual obligation not to disclose communications made during mediation.

In addition to the encouragement of full and frank discussions in mediation by assurances of confidentiality, the business world has an expectation that negotiations conducted as part of a process of mediation will be held in confidence. Business is generally guarded about what it discloses to people it is in dispute with and the legally enforced veil of confidentiality contributes to the efficacious running of business in Australia when it comes to the conduct of negotiations with a view to settle. Lifting the veil of confidentiality in mediation involving business parties would mean a loss of confidence in the ability of business to solve its own disputes, the result of this being a change in the conduct of business practices in this country that would lead to an increase in litigation and adversarial behaviour that would ultimately be detrimental to commercial practice in Australia.