Office of the Judiciary Out-of-Court Mediation Rules - 4

Article 6
Mediation Communications, Confidentiality and Disclosure

1. Communication between Mediator and parties

The Mediator may meet or communicate with the parties together or with each of them separately.

2. Disclosure of information

When the Mediator receives information concerning the dispute from a party, the Mediator may disclose the substance of that information to any other party to the Mediation. However, when a party gives any information to the Mediator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the Mediation.

3. Confidentiality

Unless otherwise agreed by the parties, all information relating to the Mediation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.

4. Admissibility of evidence in other proceedings

  1. (a) A party to the Mediation proceedings, the Mediator and any third person, including those involved in the administration of the Mediation proceedings, shall not in arbitral, judicial or similar proceedings rely on, introduce as evidence or give testimony or evidence regarding any of the following:
  1. An invitation by a party to engage in Mediation proceedings or the fact that a party was willing to participate in Mediation proceedings;
  2. Views expressed or suggestions made by a party in the Mediation in respect of a possible settlement of the dispute;
  3. Statements or admissions made by a party in the course of the Mediation proceedings;
  4. Proposals made by the Mediator;
  5. The fact that a party had indicated its willingness to accept a proposal for settlement made by the Mediator;
  6. A document prepared solely for purposes of the Mediation proceedings.
  1. Paragraph (a) of this article applies irrespective of the form of the information or evidence referred to therein.

  2. The disclosure of the information referred to in paragraph (a) of this article shall not be ordered by an arbitral tribunal, court or other competent governmental authority and, if such information is offered as evidence in contravention of paragraph (a) of this article, that evidence shall be treated as inadmissible. Nevertheless, such information may be disclosed or admitted in evidence to the extent required under the law or for the purposes of implementation or enforcement of a settlement agreement.

  3. The provisions of paragraphs (a), (b) and (c) of this article apply whether or not the arbitral, judicial or similar proceedings relate to the dispute that is or was the subject matter of the Mediation proceedings.</li>
    <li>(e) Subject to the limitations of paragraph (a) of this article, evidence that is otherwise admissible in arbitral or judicial or similar proceedings does not become inadmissible as a consequence of having been used in a Mediation.

5. Preservation of privileges or proprietary information

The disclosure by a party of privileged or proprietary information to the Mediator does not waive or otherwise adversely affect the privileged or proprietary nature of the information.