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The practical significance of confidentiality in mediation

Lookup NU author(s): Professor Bryan Clark

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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).


Abstract

This article analyses the practical importance of confidentiality and privilege in mediation with particular emphasis on issues of disclosure of what occurred in a mediation and compellability of mediators in any subsequent litigation. The piece focuses on the gap between the theory behind confidentiality in mediation – i.e. that it is largely assured in the process – and the reality in which the privacy of mediation, protected by and large by the general without prejudice rules, may be rendered far more porous in practice. The article suggests that mediation would benefit from the statutory development of rules pertaining to confidentiality that undergird the process itself and in this sense analyses two extant provisions that already apply in the UK in relation to cross border mediations, and family mediation in Scotland respectively which could provide a model for more general reform


Publication metadata

Author(s): Agapiou A, Clark B

Publication type: Article

Publication status: Published

Journal: Civil Justice Quarterly

Year: 2018

Volume: 37

Issue: 1

Pages: 74-97

Print publication date: 01/01/2018

Acceptance date: 17/05/2017

Date deposited: 08/04/2019

ISSN (print): 0261-9261

Publisher: Sweet and Maxwell


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