1. CONFIDENTIALITY IN MEDIATIONS – A WORK IN PROGRESS
ANTHONY A. NOLAN S.C.
Victorian Association for Dispute Resolution
22 July 2010

2. Scope of Forum
The Common Law principles of Confidentiality, Privilege And Admissibility
The Statutory Amendments to the principles of Confidentiality, Privilege and Admissibility
Recommendations for Reform
Suggestions to assist Mediators

3. Confidentiality at Common Law
An express term of a written agreement
An implied duty
A term of a “quasi contract”

4. Exceptions to Confidentiality
Waiver
Enforcement of the Agreement reached at an ADR process
Public Safety
Fraud and/or Criminality

5. Admissibility at common law
A mediator is a competent and compellable witness
Public policy to protect confidentiality
“Without prejudice” privilege

6. Exceptions to the without prejudice principle
Disclosure with the consent of the parties
Admissibility of mediated agreements
Allegations of fraud and/or criminality
Mediator reporting obligations
Costs orders and procedural hearings

7. Statutory Reforms to the Common Law
Australian Law Reform Commission Reports 26 , 38 and 102
Evidence Act (Cth) 1995
Evidence Act (Vic) 2008

8. Specific Federal and State legislation concerning mediation
Section 53B of the Federal Court of Australia Act 1976
Sections 24A and 24B of the Supreme Court Act 1986
Sections 41 and 47B County Court Act 1958
Sections 85 and 92 of the Victorian Civil and Administrative Tribunal Act 1998
Section 10 H & J of the Family Law Act 1975

9. Summary of current position
If the parties to a dispute conduct an ADR process before litigation then section 131 of the Evidence Act applies.
If the parties issue proceedings but then engage in an ADR process such as mediation or early neutral evaluation before an order is made, then section 131 of the Evidence Act applies.
If the parties issue proceedings in the Federal Court and the Court orders a mediation then section 131 of the Evidence Act does not apply. Section 53B of the Federal Court of Australia Act applies.

10. Summary of current position (2)
If the parties issue proceedings in the Supreme or County Courts and are ordered to mediation or a case conference then section 131 of the Evidence Act probably does not apply and the Rules of Court will limit the evidence which may be adduced.
If the parties are in litigation in the Family Court of Australia then section 10H of the Family Law Act applies and section 131 of the Evidence Act does not apply.

11. OPENING
This ADR process is not Court ordered. Therefore section 131(1) of the Evidence Act provides that what is said or done in negotiations is inadmissible. But if the Court determines that a right has been affected then section 131(2) may apply. Even then the Court might not admit that evidence because of section 135 of the Evidence Act. OR
This ADR process is Court ordered………..

12. Suggestions to ADR Practitioners
Ensure your ADR agreement is well drafted
If it is said that there is a Court order always call for the order before the mediation to ensure that it is still current
Redraft your opening statement to accord with the current legal framework
Lobby the State and Federal Attorneys-General to achieve consistency in all ADR processes irrespective of whether a Court order has been made
Continue to rely upon the reluctance of Judges to hear any evidence of things said or done at mediation

13. Pay your professional indemnity insurance

14. CONFIDENTIALITY IN MEDIATIONS – A WORK IN PROGRESS
ANTHONY A. NOLAN S.C.
Victorian Association for Dispute Resolution
22 July 2010