Importance of Confidentiality and Impartiality in Mediation Practice

This essay discusses the importance of confidentiality and impartiality in mediation practice. It explains how confidentiality helps establish trust and how impartiality allows parties to collaborate. The challenges associated with these aspects are also discussed.

Running Head: LAW/ MEDIATION
Importance of Confidentiality and Impartiality in Mediation Practice
Student’s Name
Institutional Affiliation

LAW/MEDIATION
Mediation is a process where an impartial third party helps two other parties in
conflict to reach a voluntary solution or settlement. Thus, mediation is not a practice of law.
This practice is important in society as an alternative dispute resolution. Mediation should be
exploited as it aids other means of resolving disputes as the court ordered in the Wimsatt v.
Superior Court of California for County of Los Angele1.This essay is going to expand on two
aspects of mediation that are important during any mediation process while showing the
understanding of the importance of confidentiality and impartiality during mediation.
Confidentiality is a state in which things are kept a secret or private. It is an important
aspect as it allows the participants to speak freely about what their thoughts are or even
demands. Confidentiality also means that whatever information has been shared in a meeting
cannot be used in any other future proceedings and this forms the basis of establishing or re-
establishing trust between the individuals2. The big issue in confidentiality comes in during
implementation. In mediation, there is really no agreement of not sharing and considering the
fact there are no sanctions if either parties break confidentiality, chances of the parties
breaking it remains relatively high.
Article 7 of the EU Directives states that unless both parties are in agreement, none of the
parties will be allowed to give any evidence in court or in any judicial proceedings from or in
connection from the mediation3. This, in a way, tends to improve the mediation process
knowing one cannot use information from mediation for gain in court. This also means the
parties will stick to mediation rather than making it a means of getting evidence to later use it
in court as it will be inadmissible.
1 [2007] Cal: Court of Appeal, 2nd Appellate Dist., and 3rd Div.
2 (2000-2001)41 Santa Clara L. Rev. 1093
3 EU Directives article 7 95/46/EC

LAW/MEDIATION
There are some disadvantages of mediation. First, there is the question of whether it is
more important to mediators than clients. The mediators herein getting credit for helping find
a solution not bearing in mind how fair or unfair the outcomes have turned out to be. There is
no opportunity for precedents in mediation and this may lead to unfair outcomes. There also
is the issue of more people than those involved knowing about it which adds up to the
limitations4. In my opinion confidentiality in mediation is so important and should be
practised at all times. This will ease the process, improve trust and show maturity as this
information will not be used anywhere so it’s only wise enough to keep it confidential.
Impartiality is a state of remaining neutral and in a case of mediation, not supporting
either of the parties in any manner5. Self-determination is the ability to identify and achieve
goals on a foundation of knowing and valuing oneself. The ability to self-determine is
associated with being aware of personal preferences, strengths and weaknesses. One in this
case the mediator should be able to consider the available options while anticipating the
consequences. Mediators should take responsibility of their actions thus this makes them to
self-regulate and self-evaluate. The ability to communicate will help him negotiate
compromise and persuade with the parties.
Mediation is very different from investigation, thus it should have a non-judgemental
approach. There should exist mutual gain where all parties have a win-win situation6.
Impartiality is important as it allows the parties involved to collaborate and not compete to
reach a solution of their own understanding. Where there’s conflict of interest with the
4 Shyam Kishore, ‘The Evolving Concepts of Neutrality and Impartiality in Mediation’ [2006]
5 PJ Carnevale, S Arad- Bias and impartiality in international mediation - The theory and practice of mediation,
[1996]
6 Judy Wamaitha Mugo AN ANALYSIS OF MEDIATION AS A TOOL IN CONFLICT RESOLUTION IN
AFRICA: a case study of mediation process in south Sudan between DECEMBER 2013-MARCH 2015 [2014]

LAW/MEDIATION
mediator the mediator should withdraw from the process and allow someone else to take the
process along.
7One of the biggest challenge of impartiality is that parties may try to get the mediator on
their side thinking the mediator is the one to make the decision while it’s supposed to be
them. This also introduces the challenge that it’s difficult to unlearn than to learn.
To conclude, the importance of confidentiality and impartiality are insurmountable in
mediation practice. But they are also associated with challenges which all parties and the
mediator should try and improve or work on to make the mediation process smooth. Again
mediation as an alternative means of dispute resolution is a better option against the tiresome
legal procedures and has been a remedy for many.
7 Kydd, American Journal of Political Science, [2003] ‘Which side are you on? Bias, credibility and mediation’

LAW/MEDIATION
References
Case Laws
Wimsatt v. SUPERIOR COURT OF CALIFORNIA FOR COUNTY OF LOS ANGELES
Cal: Court of Appeal, 2nd Appellate Dist., 3rd Div. 2007
Legislation
Legislation Protecting Confidentiality in Mediation: Armor of Steel or Eggshells 41 Santa
Clara L. Rev. 1093 (2000-2001)
Online articles
EU Directive 95/46/EC – ‘The Data Protection Directive CHAPTER II - GENERAL RULES
ON THE LAWFULNESS OF THE PROCESSING OF PERSONAL DATA Article 7’
<https://www.dataprotection.ie/docs/EU-Directive-95-46-EC-Chapter-2/93.htm> accessed on
25/10/18
Shyam Kishore, ‘The Evolving Concepts of Neutrality and Impartiality in Mediation’ [2006]
< scholar.google.com/citations?user=LPeeR0QAAAAJ&hl=en> accessed on 26/10/18
Judy Wamaitha Mugo, ‘An Analysis of Mediation as a Tool in Conflict Resolution in Africa:
A Case Study of Mediation Process in South Sudan Between December 2013-March 2015’
[2014] < http://erepository.uonbi.ac.ke/bitstream/handle/11295/100012/Mugo_An
%20Analysis%20Of%20Mediation%20As%20A%20Tool%20In%20Conflict%20Resolution
%20In%20Africa%20A%20Case%20Study%20Of%20Mediation%20Process%20In
%20South%20Sudan%20Between%20December%202013-March%202015.pdf?
sequence=1&isAllowed=y> accessed on 26/10/18
Books

LAW/MEDIATION
PJ Carnevale, S Arad- Bias and Impartiality in International Mediation - The theory and
practice of mediation, [1996]
Journal Articles
Kydd, ‘Which side are you on? Bias, credibility and mediation’-[2003] American Journal of
Political Science