The Mediator's Duty of Confidentiality: Navigating the Grey Areas

Confidentiality is the cornerstone of mediation, but its application isn't always black and white. While the principle is simple—what is said in mediation, stays in mediation—mediators must be aware of the nuances and potential exceptions.

primary source of the duty is the mediation agreement signed by the parties. This contract should explicitly state that all communications, whether oral or written, are confidential and cannot be used in subsequent legal proceedings.

However, grey areas exist. What if you learn of a potential future crime or harm during a caucus? Most jurisdictions, including Hong Kong, recognise public policy exceptions to confidentiality, such as preventing harm to a child. These situations are rare but require careful ethical consideration, and often, consultation with a professional body.

Another grey area is mediation in building management. To what extent are participants in mediation entitled to share information with their stakeholders? How can transparency in building management be balanced with the need for candid communication in mediation? How can non-participants be kept informed without allowing them to sabotage the process? These practical issues must be addressed by a mediator based on the unique dynamics of each case. A good reference is "public mediation" or the "negotiated rule-making process" in other jurisdictions. Mediators are encouraged to read relevant texts and apply them in their practice.