Two separate protections operate, and they do different things: confidentiality restricts who may be told, and admissibility restricts what a court may hear.
Order 2 Rule 12
(1) All participants in a mediation are subject to a duty of confidentiality and shall not, without the consent of all parties to the proceeding, disclose to any person not a party to the proceeding the nature or effect of any discussions and any documents produced during the mediation that are not otherwise discoverable.
(2) Nothing said, or the nature or effect of any documents produced, during discussions between the mediator and any participant in the absence of any one or more of the parties shall be disclosed directly or indirectly by any participant to the absent parties without the consent of all participants in those discussions.
“Participants” is defined broadly in Order 1 Rule 3 — it includes mediators, parties and all other persons present and participating in a mediation process. The duty binds everyone, not only the parties.
Subrule (2) protects the private session. What is said to the mediator in a separate session stays there unless everyone in that session consents. That is what makes private sessions useful.
Note the qualification in subrule (1): documents that are not otherwise discoverable. A document that would have been disclosable on discovery does not become protected by being handed over at a mediation.
Rule 12(3)
The provisions of subrules (1) and (2) do not apply to instances of —
- Non-attendance of a party at mediation.
- Non-compliance with orders or directions of the Court or directions of the mediator.
- Failure to meet any of the requirements of these Rules.
- A refusal by a party to sign a record of a mediated result or a mediated agreement.
- A report by the mediator compiled with the assistance of the parties regarding issues remaining for determination.
- A party taking a position that is contrary to established legal principles or contrary to the established facts of the case.
- Any disclosure under Order 2 rule 3(8) or disclosure by consent under subrule 12(1).
A party who takes a position that is contrary to established legal principles or contrary to the established facts of the case loses the protection in respect of that conduct. So an untenable position advanced in the mediation can be reported to the Court.
Together with exceptions 1 to 4, the effect is that conduct at a mediation is generally reportable while the substance of negotiations is not. That is what allows the Court to act on bad faith under Rule 11 without the confidentiality rule getting in the way.
Order 2 Rule 14
Subject to Order 2 Rule 13(3), no evidence shall be admitted in the proceeding, the subject of a mediation, or any other proceeding of anything said or done by any person at the mediation except only with the prior informed consent of all the parties attending mediation — where the mediation has been conducted (a) in accordance with Order 2 Rule 9, or (b) by an accredited mediator prior to commencement of a proceeding.
Section 7C(2) of the National Court Act (Chapter 38) is to the same effect: except as all the parties who attended the mediation in writing agree, no evidence shall be admitted in the Court proceeding or any other proceedings of anything said or done by any person at the mediation.
Order 4 Rule 10
Before undertaking the mediation, mediators shall —
(a) clarify the participants’ expectations of confidentiality;
(b) ensure that the participants properly understand their duties and responsibilities of confidentiality;
(c) where there is a written agreement to mediate voluntarily, ensure that appropriate and adequate provisions are made for the confidentiality of the process;
(d) inform the participants of the limitations of confidentiality, such as statutory and judicially mandated reporting; and
(e) inform the participants concerning the mediator’s obligations of confidentiality in respect of any private session.
Rule 10(1)(c) permits revealing the contents of papers only — for necessary administrative, research, supervisory or educational purposes, excluding identifying information, without consent; with the consent of the participants; when required to do so by law; where permitted by existing ethical guidelines, or where the information discloses an actual or potential threat to human life or safety; or where necessary for replying to or defending any charge or complaint of criminal or unprofessional conduct or professional misconduct brought against the mediator.
Rule 10(3): if subpoenaed, or otherwise notified to testify or to produce documents, the mediator shall attempt to inform the participants as soon as reasonably practicable.
Rule 10(4): a mediator shall not give evidence without an order of a court or other competent tribunal if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants. See summonses to give evidence.
Rule 10(8): mediators shall maintain confidentiality in the storage and disposal of client records and ensure their staff do the same. Rule 10(9): mediators are not required to retain documents but may keep the agreement to mediate, any written agreement as to outcomes, and notes — particularly where duty-of-care or duty-to-warn issues are identified.
What this means for a party
- Offers made at mediation cannot be used at trial without consent of all parties. That is what allows realistic negotiation.
- Your conduct is not protected. Failing to attend, sending someone without authority, or refusing to sign what was agreed are all outside the protection.
- Documents you would have had to disclose anyway remain disclosable. Producing them at the mediation changes nothing.
- Settlement terms may be kept confidential from the Court file — Rule 9(8)(a) requires the signed agreement to accompany the certificate unless the parties mutually agree in writing that the terms of settlement should remain confidential. If confidentiality matters, agree it in writing at the time. See successful mediation.
Sources
- Alternative Dispute Resolution Rules 2022 — O 1 r 3; O 2 rr 3, 9, 11–14; O 4 r 10
- National Court Act (Chapter 38) — s 7C(2)
- National Court Rules 1983 — O 9; O 11
The ADR Rules 2022 are on PacLII as a PDF only.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.