Waiver of Confidentiality in Alternative Dispute Resolution

This paper discusses the situations in which confidentiality can be waived off by the parties or by the mediator in Alternative Dispute Resolution (ADR). It includes the rules related to confidentiality under ADR, the sources of these rules, and the situations in which mediator can disclose the information. The paper concludes that confidentiality gives power to the mediator and permits the parties of the proceedings to disclose the matter with the mediator without reservation.

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Alternative Dispute Resolution

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Introduction:
One of the most important elements of the dispute resolution process in Australia is the
guarantee related to the confidentiality. This is considered as the most important element,
because it encourages the parties to make full disclosures in the proceedings and it also
encourage the honest discussions and thoughts between the parties and also with the mediator. It
can be said that, confidentiality gives power to the mediator and allow the parties of the
proceedings to disclose the matter with the mediator without any hesitation. It is defined as the
aptitude to disclose the close details and information which is contrary to party’s own interest
that generally results in the settlement of case. There are number of rules related to the
confidentiality which needs to be followed by the mediator and parties related to the proceedings
(ADR Working Group 2006).
It must be noted that, there are number of situations occurred in which confidentiality cannot be
waived, but it leads to disastrous results. It develop the requirement to frame such rules in which
confidentiality can be waived by the parties and mediator for ensuring better results or
preventing some disastrous outcomes. This paper discusses the statement when the requirement
of confidentiality must be allowed to be waived under the process of dispute resolution. Structure
of this essay includes the detailed discussion related to this statement, and this discussion is
followed by the brief conclusion.
Discussion
As stated under section 3(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act), ADR
processes includes the conferencing, conciliation, mediation, neutral evaluation and case
appraisal. Generally, maximum ADR processes at the AAT are conducted by the conference
registrar. Those parties which are engaged in the ADR processes at the AAT are under obligation
to act in good faith. Section 34 A(5) of the AAT Act states that, maintaining the confidentiality
of the ADR proceedings is deemed as most important element to act in good faith (AAT 2018).
In terms of the alternative dispute resolution, confidentiality means all the communication and
negotiations occurred between the parties related to the proceedings and between the parties and
the mediator. In ADR, the basic requirement of the confidentiality is the contract which defines
the rights and obligations of the parties in terms of confidentiality. In other words, confidentiality
mainly arises from the ADR agreement itself, but it also arises from the statute, common law,
and from the equitable principles. These agreements binds the parties related to the agreement,
but it also binds the third party neutrally appointed in this context. This can be understood with
the help of example, in Victoria each and every Act established in terms of the Victorian Courts
and different rules of Courts give assistance to the ADR processes by framing the law-
 The court may on the option of the parties or of its own motion, refer the proceeding to
the mediation or other ADR process (Wykoff 2016).
 Unless each party related to the mediation and other ADR process otherwise give their
approvals in writing, no evidence of anything said or done by the parties in the mediation

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or ADR proceedings will be admitted at the hearing of the Court proceedings (Subway
Systems Australia Pty Ltd v Ireland [2013] VSC 550]
 Any mediator to whom the civil proceedings or part of these proceedings are referred by
the Court enjoy the same protection and immunity as the Judge.
There are number of rules related to the confidentiality under the ADR, and these rules are not
stated under the solitary document. The main sources of these rules are the Barristers’ Conduct
Rules, Australian Solicitors Conduct Rules, and the National Mediators Standards. All these
guidelines clearly stated that the confidentiality of parties must be kept in all the situations,
except those situations in which waiver of confidentially are allowed by law (Attorney General
Department 2012). While there are overabundances in terms of different guidelines related to the
rule of meditation, as everyone assumed in incorrect manner that mediator may be the legal
practitioner or attributed in the National Mediator Standards. Accordingly, it is possible for any
individual to conduct the mediation and they are not bound by any of the above stated guidelines.
In those situations, when mediator does not related with any controlling body, it becomes almost
impossible to apply these ethical standards. However, things are different in practice because
maximum numbers of mediators in Australia are either the legal practitioners or the nationally
accredited mediators. These anonymous regulations and the lack of leading body result in
confusion in context of rules, and also results in the abuse of confidentiality.
Rules related to the mediation confidentiality also framed at the Federal level, which means,
under the Evidence Act. As defined in section 131(1), any evidence related to the communication
made between the parties related to the proceedings or communication made between the parties
or the third party or more Persons. An attempt to discuss the settlement of the dispute or the
document that has been prepared is not admissible. This rule has the exception also which can be
found under section 131(2) of the Act. These exceptions are stated below-
Communication related to fraud or any other offenses, in which parties agreed on implied or
express basis that confidentiality can be waived or in case evidences are related to the
determinations of costs order. At the state level, rules related to the mediation confidentiality
were previously stated under section 112-114 of the Supreme Court of Queensland Act.
However, this legislation has now been repealed in part. New rules related to ADR are now
stated under section 52-54 of the Queensland civil proceedings Act. In context of penalty up to
$5500, section 54(1) states that, an ADR convenor must not disclose any information which is
coming to the ADR convenors knowledge during the process of ADR without any reasonable
excuse.
In similar manner, Section 53(1) of the Civil Proceedings Act states that, any evidence in which
anything done or said, or an admission made, at an ADR process about the dispute is considered
as an admissible evidence at the trial of the dispute or in another dispute or in any other civil
proceedings before the court or at any other place, only if all the parties related to the dispute
agree. This section deals with the state legislation which concludes that all the parties related to
the dispute must be agreed with the right to waive the confidentiality right.
There are number of situations in which mediator should waive off the confidentiality, which
means, this section discuss the situation in which mediator can disclose the information. As
stated above, there are number of rules which dictate the situations in which mediator can
disclose the confidential information, and all these rules are governed by number of guidelines

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(Williams 2005). Under section 6(1) (c) of the National Accreditation Mediator Standards, it is
the obligation of the mediator to respect the confidentiality and must not voluntarily disclose
anything to anyone who is not the party of the proceedings or at any other place except it is
required by the law. In similar manner, Section 108 of the of the Barristers’ Conduct Rules states
that barrister must not disclose or use in any way as the confidential information received by the
barrister while conducting the proceedings. Finally, section 9 of the Australian Solicitors
Conduct Rules, solicitor must not disclose any information which seems confidential to the
client, unless solicitor of the proceedings is obliged or permitted by the law to disclose.
It must be noted that, there is no obligation on the mediators in Australia to report the matter
related to the abuse or violence. Comparatively, there are number of jurisdictions such as in
United states, in which mediator is under obligation to report particular situations. Finding the
balance in terms of providing the best access to justice for all the required parties related to the
mediation confidentiality is difficult in nature. In these Jurisdictions, obligation is imposed on
the mediators to report all those matters in which any person is threatened to get injured or any
abuse is involved. It is necessary that, in Australia also such obligation must be imposed on the
mediators to disclose all such matters which involves the abuse in context of any person either
child, women, men. In other words, in all those matters which deals with the Child abuse, threats
of violence, coercion or malpractice must be reported by mediator in terms of protecting the
interests and allow the access to justice for these individuals, discretion as opposed to exact
confidentiality is needed (Arthur 2017b).
There are some other situations also in which confidentiality can be waived off by the parties or
by the mediator also, and some of these situations are described below-
 Confidentiality must be waived off in those situations where there is threat of injustice or
where there are chances that justice will be affected in negative manner. In USA, it is
allowed to waive off the confidentiality if there is any threat to justice or where injustice
will prevail if disclosures related to ADR proceedings are not made.
 Another situation in which confidentiality must be waived off is the situation in which
there is threat to someone’s life or there is involvement of abuse. Practitioners of ADR
must be required by law to disclose the information such as report of the child abuse and
any threat to the human life or safety.
 Disclosures must be allowed to be made in those situations when innocent party to the
proceedings have to bear loss in unnecessary manner if confidentiality is not waived off.
In other words, must be disclosed to those people who are directly affected by these
sessions and their results such as children’s affected from the family disputes (GLI
2018).
It must be noted that some other examples or situations in which confidentiality should be
waived off are stated below-
 All the parties related to the proceedings are agreed to make disclosures which are
confidential in nature (Samantha and Hardy 2014)
 Party related to the proceedings are seeking the professional advice from their lawyers
and the financial advisers, but it is necessary that they keep that information confidential.
 ADR practitioners disclose the necessary information in the sessions of ADR in such way
as this information does not identify the party.

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 Party to the proceedings give permission to the practitioners of ADR in terms of
discussing the AADR processes with the other participants such as lawyers and expert
advisors if they are not present in the proceedings.
 (Arthur 2017a).
Conclusion
Confidentiality gives power to the mediator and permits the parties of the proceedings to disclose
the matter with the mediator without reservation. There are number of situations in which
mediator can waive off the confidentiality, which means, this section discuss the situation in
which mediator can disclose the information in Queensland. There are number of rules which
dictate the situations in which mediator can disclose the confidential information, and all these
rules are governed by number of guidelines. The basic requirement of the confidentiality is the
contract which defines the rights and obligations of the parties in terms of confidentiality. In
other words, confidentiality mainly arises from the ADR agreement itself, but it also arises from
the statute, and common law.
References
AAT. 2018. Confidentiality in ADR Processes.
http://www.aat.gov.au/steps-in-a-review/alternative-dispute-resolution/confidentiality-in-adr-
processes.
Administrative Appeals Tribunal Act 1975
ADR Working Group. 2006. Protecting the Confidentiality of Dispute Resolution Proceedings.
https://www.adr.gov/pdf/final_confid.pdf.
Andrea. Wykoff. 2016. Mediation & confidentiality. Bond University Student Law Review, 4(1].
Attorney Generals Department. 2012. Your Guide to Dispute Resolution.
https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/Your%20Guide
%20to%20Dispute%20Resolution.pdf.

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Bergin, p, A. 2014. The Global Trend in Mediation; Confidentiality; And Mediation In Complex
Commercial Disputes. An Australian Perspective. Proceedings of international conference held
in Hong Kong.
Civil Proceedings Act 2011.
David. Spencer., and Samantha. Hardy. 2014. Dispute resolution in Australia: cases, commentary
and materials. Australia. Lawbook co.
Evidence Act 1995.
GLI. 2018. Litigation and Dispute Resolution 2018.
https://www.globallegalinsights.com/practice-areas/litigation-and-dispute-resolution-laws-and-
regulations/australia.
John. Arthur. 2017a. Confidentiality and privilege in mediation.
https://svensonbarristers.com.au/wp-content/uploads/2017/07/Confidentiality_and_Privilege_in_
Mediation_Australian_perspective.final_.pdf.
John. Arthur. 2017b. Statutory requirements to attend or use ADR: Victoria.
https://svensonbarristers.com.au/wp-content/uploads/2017/07/Statutory_requirements_to_attend_
or_use_ADR_ADRB_1.1_final.pdf.
Sarah. Williams. 2005. Confidentiality in Mediation: Is It Encouraging Good Mediation or Bad
Conduct?. Journal of Dispute Resolution 209, 212.
Subway Systems Australia Pty Ltd v Ireland [2013] VSC 550.
Supreme Court of Queensland Act 1991.