Confidentiality in mediation : burden or benefit?

Abstract

‘Speech is silver; silence is golden’. Confidentiality is pivotal in catalysing the active participation of the parties in the mediation process. However, boundaries need to be established, with little room for interpretation by the courts, to enhance predictability and certainty. Confidentiality is fundamental in mediation as it promotes frankness and candour. Indeed, one of the hallmarks of mediation is deemed to be confidentiality; its promise that statements made and information gathered during the process will not be repeated elsewhere and will not be disclosed in any court or tribunal. It is central to the mediator’s impartiality and neutrality. In spite of these evident benefits, confidentiality can also be a burden. While giving disputants the green light to put all their cards on the table without boundaries, the process can be abused by opportunistic parties who participate as a fishing expedition or to eliminate incriminating evidence, so as to strengthen their position in future litigation, to the detriment of the opponent participating in good faith. All this would not aid in the promotion of the mediation process and would result in increasing the workload on courts. The literature review and the research carried out and discussed in this study shows that, the legislation regulating confidentiality needs to reflect a fine balance of the conflicting interests involved by creating justified exceptions, whilst keeping in mind public interest. The current local framework regulating confidentiality in mediation is riddled with ambiguities and gaps, leaving room for misinterpretation. Proposals for improvements to the current practice and legislation in force in Malta that would better serve the needs of the mediation process and those involved shall be explored, with recommendations for future research in this field, to enhance and promote a better understanding of the subject.