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Confidentiality

Confidentiality is at the heart of mediation.

A contract (a draft of which will be provided on request) is entered into between the parties and the mediator (and any assistant/observer) which sets out the confidential nature of the mediation. This is known as the Agreement to Mediate.

In essence, to the extent that the law allows, anything (information/paperwork) that is provided to the mediator prior to the mediation is confidential between the party supplying it and the mediator.

During the mediation, any information provided or offers made, will remain confidential. Any offer will be “without prejudice”, that is to say that it cannot subsequently be referred to in any court action, if the matter does not settle at the mediation.

The mediator will explore (in private session) with a party the strengths and weaknesses of that party’s case. This is known as reality testing, and allows the mediator to examine with the party (and any representative present) what room there is for reasonable compromise, given the likely outcome should the matter not settle. The mediator will not seek to decide who has the better legal case, nor to try and establish whether anyone has the “higher moral ground”.

Only with the specific agreement of a party will any information or offer be shared with any other party.

If agreement is reached on all points (including liability for costs) the representatives of the parties will prepare a Settlement Agreement. It will be for the representatives to ensure that this forms a binding contract, but the mediator will assist by seeking to ensure that it incorporates all the agreed points and that it is a “workable” document. Only if this document is signed by (or on behalf of) all the parties does it become binding.

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