Confidentiality of mediation sessions

In this final part of the mediation series, Jamie Kennaugh and Sarah Jane Boon discuss the confidentiality of mediation sessions, answering the following questions:

• Do mediation discussions remain confidential?
• What happens if a mediator has safeguarding concerns?
• Are financial matters open or private in mediation?

For more information on the topics covered in the below video do not hesitate to contact a member of the team.

Transcript

Jamie Kennaugh: Hi Sarah Jane, thanks for joining me today. We are talking about confidentiality and privacy within the medication process.

Sarah Jane Boon: I think a lot of clients are increasingly concerned about potential publicity or the risk that their personal lives could become public and that could be a factor for them when deciding whether they would like to try mediation rather than going through the court process.

Jamie Kennaugh: That’s a really important point as the court process and mediation process are very different in relation to privacy and confidentiality. In relation to mediation, the whole process is a confidential and private space to talk about the way in which to take your family forward. There are a couple of exceptions such as safeguarding. If the mediator has any safeguarding concerns, they are under a duty to act on those concerns and sometimes have to report to external authorities in serious matters. Financial disclosure within the mediation process is done on an open basis. So, information about salary, assets, values, are all disclosable openly outside of the mediation process, but everything else is confidential the mediation process.

Sarah Jane Boon: What if the parties to the mediation are making offers to try to comprise things and settle them, that is different, isn’t it?

Jamie Kennaugh: Within the mediation process, the idea is that everyone is there to be able to have candid, open, frank discussions and really try to find a way through for the family. So, within it, the confidentiality that applies to mediation sticks. You can’t then go off into open court, or even into a without prejudice court environment and start talking about the proposals that have been made. It sort of defeats the point of being able to have those open discussions and look at all options for settlement in the mediation process.

Sarah Jane Boon: Yes, but they can take with them the financial disclosure that they have done through the mediation process which can be useful to them if they then end up having to go through a court process because they have not been able to resolve things.  

Jamie Kennaugh: Absolutely. Somebody cannot hide behind the cloak of mediation confidentiality in relation to the finances. They cannot say one thing in the mediation, for example “This asset is worth five million” and then in the court process say “it’s worth one”, that’s not how it would work. So, there is that element that you are able to take forward, either within a court process or openly with solicitors. But the reason why there is a really important distinction and why it is quite important for clients to understand the difference between mediation and court, is that if you go down the court route, there is a real risk and an increasing risk in our current environment, that court proceedings might be either held openly, might allow journalists in and  to report much more than they have been able to do in the past, and also judgments, if you get to that stage, might not be anonymised.  

Sarah Jane Boon: So, their full names might be there and details of where their business is?

Jamie Kennaugh: Full names, yes. Absolutely, the courts do try to protect children, but ultimately there is a move towards much more openness within the court process so that everyone can understand what is going on. So, there is a real risk that identities, private information is out there in judgments, and also out there in the media.

Sarah Jane Boon: I think that makes it a lot more attractive for people with the mediation alternative, that they know they are going to have a safe space where they can talk about very personal issues and there is no risk of it being reported in the media, or, that their friends, family, business contacts are going to become aware of what are very private disputes.

Jamie Kennaugh: Absolutely.  And I think that the court process and even going into a court building, say if you were at the High Court, it is quite an open environment. There will be other people there. There is a specific area for the family courts and people walk down the corridor and you can see who else is there and waiting to go in. So, that is not a particularly nice environment for people in the public eye, if journalists are getting involved salacious details can be reported and sometimes it is not very responsible reporting. So, yes, mediation is an entirely different environment. It is confidential, private and it is there to really try to allow the family to look at all of the options to move their lives forward.  

Sarah Jane Boon: Thanks Jamie. For further information about any of the issues that we have been discussing, please do contact us on the details below.