Is the Mediation Process for My Commercial Dispute Private and Confidential? 

Your business may, at some point, be part of a commercial dispute. If so, you need to choose a way to resolve it. You may decide on mediation as an effective alternative to going to court immediately. However, whether you choose mediation will depend on several factors. In particular, privacy and confidentiality during the dispute resolution process may be essential to you. This article will explain if the mediation process for your commercial dispute is private and confidential. 

What is the Mediation Process for a Commercial Dispute?

Mediation is a voluntary, flexible, and impartial alternative dispute resolution (ADR) method. The mediator’s role is to facilitate you and the other commercial party towards dispute settlement. 

When you try mediation to resolve your commercial dispute, you will go through a process to settle it. However, as mediation is a flexible ADR tool, there is no one standard mediation process. Instead, it is up to your mediator to agree on a mediation procedure with you and the other commercial party. However, there may be some general elements that are common to most mediations. These include:

• an initial meeting between all parties where you and the other party each give an opening statement;
• private meetings between you and the mediator to discuss your case;
• a chance for the other party to also meet the mediator privately and
• a final settlement. 

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Is the Mediation Process for My Commercial Dispute Private and Confidential? 

Crucially, the mediation process to resolve a commercial dispute is a private and confidential dispute resolution method. When you start the mediation process, a good mediator should remind you of this, and it will be reinforced by the mediation agreement you and the other party sign at the outset. Some factors mediation keeps confidential include any information that: 

• you revealed to the other party;
• the other party revealed to you, and 
• the mediator hears about either commercial party.

The court also expects mediation to be confidential and will only make exceptions to this rule in minimal circumstances. A court cannot make a party to the mediation reveal what was said during mediation. This includes asking the mediator to act as a witness if a court hearing occurs following the commercial dispute. 

However, you should note that the fact that you are in the process of mediating a commercial dispute is not confidential. You, the other commercial party and the mediator are free to say that the mediation is occurring or has occurred. In some cases, a mediator may be allowed to reveal what was said in the mediation. This is the case where there is a risk of danger of harm to someone or where a crime has been committed. 

Lawyer-Client Privilege

A further way that meditation is private and confidential is through the relationship that each party has with their legal representative. This is referred to as lawyer-client privilege. This legal rule outlines that you and your lawyer must not let others know what you communicate about. 

Without Prejudice

Furthermore, statements made during the mediation process are ‘without prejudice’, including offers of settlements or admissions about the dispute. If commercial mediation fails and you continue with court litigation, these statements will be considered ‘off the record’. This means you or the other party cannot refer to them in court. However, despite this rule, if a court rule requires that a statement made ‘without prejudice’ be disclosed, you must follow the court’s instructions and do so. 

Key Takeaways

You may decide to choose mediation for your commercial dispute. This is a form of alternative dispute resolution (ADR) where a mediator facilitates you and the other party to resolve your dispute independently. The mediation process for commercial disputes is confidential, and such privacy is reinforced by:

• confidentiality on behalf of the mediator, who cannot be a witness in consequential court proceedings regarding the dispute;
• lawyer-client privilege; and 
• the statements ‘without prejudice’ principle.  

If you need help understanding privacy and confidentiality in the mediation process for your commercial dispute, LegalVision’s experienced disputes lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.