Mediator Confidentiality In Mediation Communications
3. Mediation Communications Mediator confidentiality for communications is essential to the success of mediation. But it is not an inviolable principle; there are certain cases where it will be encroached upon, lest in recognition of the public interest that a mediator fulfils. One way to approach this might be via a blanket rule with specific exceptions where society’s interest outweighs the interest of confidentiality. 3.1. Obligation of the mediator to breach confidentiality In the US, the UMA merely permits a breach of mediator confidentiality to prevent death or serious harm. At the state level; however, there is an active duty to disclose certain things, e.g. child abuse and specific and imminent harm. Otherwise, the mediator has a discretion whether to breach privilege and is expected to gauge the seriousness of the threat: “The balance which the mediator must determine is the same that any whistleblower must gauge – the utility of his or her product in local and general terms…an agreement…may be in the interests of the mediator’s employers -- the disputants – but against the public interest”. …show more content…
Nor does it apply to any fact observed by the lawyer after he has been instructed to showing that a crime or fraud has been or is being committed. The statutory exceptions to the “without prejudice” rule might be extended to mediator confidentiality as a matter of public interest. As an independent third party outside the lawyer/client relationship, the mediator may have a public duty to report certain communications, e.g., evidence of threats and
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