OCTOBER 30, 2019
INADR
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institutionalized and regulated. Therefore, it is not only common to fifind such a provision in codes of conduct (regardless, if applicable on national or international level or adopted by a single mediation center) but also national laws on mediation. Codes of conduct are rarely obligatory, however, there are countries that explicitly state in their laws on mediation that mediators shall adhere to the requirements of a specifific code of conduct. Moreover, adherence to codes of conduct for mediators can be taken into account when adopting the decision on the prolongation of the mediator’s license. Infringing provisions of codes of conduct can also lead to restrictions of the possibilities to mediate under the auspices of certain mediation centers.
The principle of confifidentiality is not homogeneous and has three underlying layers. As named by N. Alexander, these are insider-outsider confifidentiality, insider-insider confifidentiality and insider-court confifidentiality. The fifirst one reflflects the most common understanding of confifidentiality principle meaning that non-participants of mediation shall not obtain information made known during the process. The second one refers to otherwise unknown information revealed to a mediator during individual caucuses. The third one, sometimes treated as a stand-alone procedural guarantee, shall be understood as a prohibition to submit information obtained during mediation in subsequent court proceedings either in the form of evidence or a testimony. As stated above, mediation is getting more and more regulated and legal acts can be found addressing all three tiers of confifidentiality, however, the extent to which they are addressed differ. Hence, to get a better understanding on what to expect from national laws on mediation with regard to the three tiers of confifidentiality, as well as most common (and not that common) exceptions, a brief overview is provided below.
If a country has a legal act specififically regulating mediation, very high chances are that that act will also address insider-outsider confifidentiality. The vast majority of all the legal acts on mediation I have had a chance to read (and these are tens of different national laws, however, mostly European) included a provision on confifidentiality of mediation towards the third parties. Nevertheless, the regulation varies and mediators might need to help parties understand what needs to be additionally included in the agreement to mediate. For example, several legal acts assign obligation of confifidentiality primarily to mediators, and don’t give any reference to the parties of mediation or other participants that might be present during mediation (e.g. experts or other third parties brought in by the disputants). Others state only in a general manner, that mediation shall be confifidential and do not provide further explanation to whom this obligation applies. However, quite a few indicate explicitly, that
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