Confidentiality is at the core of successful mediation. A mediator must ensure to clearly communicate to both parties at the start of the mediation process that it is bound by confidentiality. This is essential in establishing trust at the start of the process, and actively encouraging disputing parties to speak freely and openly as the mediation gets underway. All parties and participants in the mediation process need to feel fully confident that they can divulge confidential information without the fear of it compromising their case or of the information being leaked or shared publically.
Furthermore participants or parties who feel reassured that their private information or opinions will go no further and will be treated with the utmost confidentiality will be more likely to enter into a collaborative, creative and open discourse with the other disputing party, and ultimately a settlement is more likely to be reached this way.
Mediation takes place outside a court of law and without the legal oaths that bind judicial proceedings, so formalities around confidentiality need to exist even more to ensure mediation is taken just as seriously – and trusted just as much – as an effective and binding form of alternative dispute resolution.
The 2008 EU mediation Directive states that “Confidentiality in the mediation process is important and this Directive should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration.“
But while certain regulations and standards of conduct do protect the confidentiality of the mediation process and any information or opinions divulged in the course of it, it is also the mediator’s job to use his or her professional training, mediation experience and own personal characteristics and people skills to communicate the importance of, and guaranteeing of, confidentiality. Building trust and ensuring parties feel a strong sense of security at the very start of the mediation process is the first essential step of any mediator’s job.