CONFIDENTIALITY IN MEDIATIONS – A WORK IN PROGRESS

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 Actdoes 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 Actprobably 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 Actapplies 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