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  • Ed
    • Aug 21, 2019
    • 5 min read

Confidentiality is key


There are said to be three pillars in mediation, sometimes shorthand refers to them as VIP, voluntary (at least theoretically), impartiality (of the mediator) and private (everything said and one is confidential off the record and without prejudice).

Now a case in California (which has previously applied confidentiality in mediation as widely as possible even to the detriment of possible claims in negligence against legal advisers for advice given in mediation) says that even the comments and discussions between parties on the same side in a mediation are confidential.

Applying s119 of the California evidence code “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, the Mediation shall be admissible or subject to discovery.”

The case involved a class action by a pension fund against Apollo Education Group, Inc., who were insured by the National Union Fire Insurance Company.

As a result of the mediation a settlement was achieved of just over $13 million, however after Apollo paid up the NUFIC refused to underwrite the cost leaving Apollo with a significant hole in their balance sheet.

Apollo sought to enter into evidence in the subsequent claim against NUFIC correspondence between them during the ongoing mediation, the appellate court refused to allow such communication and stated as its reasoning “that the documents were disclosed to participants on the same side of the mediation table is immaterial.”

It’s an interesting extension but I’d argue it’s not one which only applies to Californian mediations under the specific s119 code. The agreements to mediate Northwest Mediation’s clients sign confirms that any and all correspondence within a mediation is confidential, nothing gets passed between parties before, during or after mediation without specific agreement of the other party(ies).

Generally speaking where two parties have a common interest and end up on one side of the dispute which led to mediation there will be an existing relationship (professional or personal) but if they are discussing matters within the mediation then I would argue they are accepting that such communications are part of the confidential matter within the mediation. It is something which we shall in future be clearer about to avoid any such issue as arose in Apollo, though one would hope if your insurer is going to be expected to pay out any amount in insurance you would want a clear and open confirmation from them before agreeing any settlement.

A reminder then of the need for cyber security as well when exchanging documents, the need to use passwords for documents exchanged in mediation is long established practice at Northwest Mediation, we avoid acting as messengers between sides so it does not often come up prior to mediation but during mediation there are often documents emailed to us for consideration and if appropriate and agreed onward transmission.

It’s in these circumstances that we find ourselves adding at least one level of security, if not two, or as is more often the case physically handing documents between parties, retrieving and then shredding the copies and returning originals.

In Kenya confidentiality will be a must in discussions between the two houses of parliament in that country when they continue their mediation talks about the Division of Revenue Bill 2019.

The National Assembly and the Senate have each proposed so called mediators to deal with the discussions over how much and how counties are able to spend of the national budget.

It’s not an unusual situation where one house argues for more to be spent than the other (senate 335 billion Kenyan Shillings versus the Assembly 316.5) but it is quite an eyebrow raiser to see 18 mediators have been appointed!

I can’t help feeling the more people involved the less likely confidentiality is going to be maintained, let alone how each is going to have any real input. I’ve co-mediated in the past but never more than myself and a trusted colleague, it sounds like the word mediator is being used to mean representative, as with 18 voices in a discussion the only sensible way to be heard is to have a chair, who is both independent and knows how to genuinely mediate!

And it’s critical that a solution is found in six counties workers haven’t been paid for July resulting in strikes in Busia, Homa Bay, Laikipia, Kisumu, Kitui and Samburu.

The senate team (again clearly not mediators) includes Margaret Kamar, Charles Kibiru, Mutula Kilonzo Jnr, Mithika Linturi, finance committee chair Mohamed Mahamud, Rose Nyamunga, Ledama Ole Kina, Okong’o Omogeni and Johnson Sakaja.

The assembly representatives are equally diverse Budget and Appropriation Committee chairman Kimani Ichung’wah, Amos Kimunya, minority leader John Mbadi, Cecily Mbarire, Mishi Mboko, Junet Mohamed, Makali Mulu and David ole Sankok.

I don’t think anyone in the teams should fool themselves into thinking they are acting as mediators they all have a vested interest in getting the “right” result for their side, so perhaps they should worry less about the P of VIP and more about the Independence of their positions. As ever we at Northwest Mediation stand ready to assist (subject to travel expenses and our usual fees) should the parties genuinely want to mediate rather than simply argue and negotiate.

Normally I'm all for clauses which allow mediation or ADR of any sort but the new Apple Card Agreement insists that (unless you very carefully disagree) if you have a disagreement you waive your right to any court proceedings at all and will only proceed by Arbitration.

I cannot see this standing up to scrutiny in the UK courts but it's worth noting that one of the world's biggest companies now considers that ADR is so vital it will take precedent over existing laws.

By having a deep and meaningful discussions with parties the mediator elicits what the true “red-lines” are and where there is the potential for compromise, it is with this structured period of reflection that the parties are then able to reach an accord.

The flexible nature of mediation and the possible outcomes make it an ideal way to resolve disputes in an ever changing world and the open nature of discussions in mediation whilst remaining confidential allows all sides to engage fully in the process and understand the needs of all involved allowing parties to reach a conclusion which both sides can live with and move on.

There are so many situations which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public (and some lawyers) will go to avoid referral.

Whether you need a mediator to help out with a construction matter in the Northwest, or council’s plans in Cheshire, a civil mediator in London, a commercial mediator in Manchester, a dispute resolution for your family in Liverpool, a neighbourhood mediation in Stockport, then our mediators at Northwest Mediation can help.

Mediation is cheaper, quicker and less stressful than running any case to court, it can help with any dispute whether it's an employment issue or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes, civil mediation or inheritance, wills and probate arguments contact Northwest Mediation on 07931318347 or via email at ed.johnson@northwestmediation.co.uk

neighbour mediation; commercial dispute resolution; civil mediation; commercial dispute; corporate dispute; commercial mediator; family mediation; inheritance wills probate mediation; property mediator; civil mediator; civil litigation; fast track mediation; injury mediation

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