Piercing the veil of confidentiality in mediation to ensure good faith participation – An untenable position?

• Main Author: QUEK ANDERSON, Dorcas
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2019
• Subjects: mediation confidentiality; without prejudice; good faith; Mediation Act; Dispute Resolution and Arbitration
• Online Access: https://ink.library.smu.edu.sg/sol_research/3258; https://ink.library.smu.edu.sg/context/sol_research/article/5209/viewcontent/Piercing_the_Veil_of_Confidentiality_in_Mediation_to_Ensure_Good_Faith_Participation.pdf
• Institution: Singapore Management University

Confidentiality is a foundational characteristic of the mediation process, a key feature that distinguishes mediation from litigation. However, the veil of confidentiality has been lifted for several purposes, including the courts’ assessment of the parties’ conduct so as to ensure good faith participation in the mediation. This article discusses how the mediation confidentiality and good faith participation may be concurrently promoted. It reviews the current approaches to upholding the general confidentiality and inadmissibility of mediation communications, and proposes ways to ensure that the veil of mediation confidentiality is pierced in highly circumscribed circumstances. It then examines the issue of whether to mandate good faith participation in mediation. This author proposes the articulation of a good faith obligation in order to send the correct signal about the expected conduct within mediation. However, the author also suggests that sanctions be imposed only for breaches of objective requirements, and the presence of highly egregious conduct within mediation. Otherwise, the veil of confidentiality would be readily lifted, to the overall detriment of the mediation process.