What about confidentiality in mediations?
Confidentiality is one of the key aspects of mediation. Where parties in (the run-up to) lawsuits tend to hide information for the other party, being open and sharing information is essential for a successful mediation. This expedites the level of trust that is necessary to grow together and to become aware of the other party’s interests.
Parties that use mediation for improving their relationship or resolving a dispute, often do so in order to avoid a lawsuit. Mediation is often successful. Not always though, in which case parties easily end up in a lawsuit. It is very important that things that have been shared confidentially during the mediation, will not be revealed during the lawsuit.
How is the confidentiality of mediation regulated and is there any room for parties to use files from the mediation after the mediation has come to an end?
The Mediators Federation Netherlands (‘MFN’) has laid down the duty of confidentiality in the Mediation Regulation (mediationreglement). In short, both parties and the mediator (registered with the MFN) are prohibited from revealing information or files (also to judges or arbitrators) that have come to their knowledge during the mediation.
The Mediation Regulation has a broad definition of ´files´. This includes the mediation agreement, notes that the mediator or the parties have taken during the mediation, reports, the contract in which parties have laid down the agreements that they made during the mediation (insofar as they have agreed to keep those confidential), but also data carriers such as audio tapes, videotapes, pictures and digital files, in whatever form.
In case that a party wishes to use information and/or files (in a lawsuit) that fall under the duty of confidentiality of a mediation in which they have participated, he will need the other party’s consent.
The above shows that the duty of confidentiality is quite strict and guarantees respect for the confidentiality in mediations. This enables parties to safely be open and transparent during the mediation, which considerably increases the prospect of a successful mediation.
Please note: the MFN Mediation Regulation (including the duty of confidentiality contained therein) is only applicable in case that parties to the mediation declare the Mediation Regulation to be applicable to the mediation. Mediators registered with the MFN are obliged to abide to the Mediation Regulation at all times. This is a good reason to always engage a Mediator registered with the MFN.
