Confidentiality of mediations
(in Queensland)

And its limits

It is recognised and understood that a party should be able to speak frankly and openly to the mediator in confidence. There should be no fear that the mediator will inform the other side of what has been said without the party's consent. This is extremely important as part of the exploratory process of each party and it means that the mediator can receive information from both sides which is confidential to them both, but which may demonstrate to the mediator some common ground or indicate a way in which the dispute may be settled.

However, the mediation process also inevitably involves the passing of thoughts, views, information and argument from one party to another. This may be done directly by a party under the mediator's control and supervision, or it might be done indirectly through the mediator. And it may be done orally or in writing.

Whilst ideally such communications would also be confidential and would not be disclosed to anyone else or used in any way, particularly in court, it is important that parties understand the limits of this. That limit is set by the conflict between the importance of such confidentiality in encouraging parties to settle their disputes by negotiation, and the court's attempt to achieve justice between the parties if the dispute is not settled in such negotiations.

The court is in control of resolving this conflict. And as can be seen below, even despite prior agreement between the parties the court will in certain limited situations admit evidence about communications made from one party to another in a mediation. In particular, sometimes evidence of offers made at a mediation may be admitted if the evidence is relevant to the question of costs.

The following factors affect whether evidence of communications from one party to another in mediation will be admissible in court:-

the nature of the communication
whether the mediation is ordered by the court and if so which court
before which court the question of admissibility of confidential material is tested
whether there is a mediation agreement

Here is a table which attempts to provide the current state of the law applying these factors. Please note this only applies to mediations in Queensland which do not result in settlement, and that it is subject to the analysis below. Click on the links in the table to go to the relevant part of that analysis. Don't rely on anything in this table or in this article without making your own enquiries and checking the current state of the law.

Is a communication made in a Queensland mediation protected from admission in court?
Nature of the communication made at the mediation	Private mediations		Ordered mediations
Nature of the communication made at the mediation	With mediation agreement	Without mediation agreement	Ordered by Federal court	Ordered by Queensland court
Factual information given in connection with an attempt to settle, relevant to an issue in a Queensland court	Yes: By contract	Yes: By public policy	Yes: By s53B	Yes: QLD statute
Factual information given in connection with an attempt to settle, relevant to an issue in a Federal, ACT, NSW, TAS or VIC court	Yes: Within s131(1)	Yes: Within s131(1)	Yes: By s53B	Yes: QLD statute
Factual information not given in connection with an attempt to settle, relevant to an issue in a Queensland court	Yes: By contract	No: Limited by public policy	Yes: By s53B	Yes: QLD statute
Factual information not given in connection with an attempt to settle, relevant to an issue in a Federal, ACT, NSW, TAS or VIC court	No: Outside s131(1)	No: Limited by public policy	Yes: By s53B	Yes: QLD statute
Offer to settle which is relevant to question of costs in a Federal, ACT, NSW, TAS or VIC court	No: Exception in s131(2)(h)	No: Exception in s131(2)(h)	Yes: By s53B	Yes: QLD statute
Offer to settle which is relevant to question of costs in a Queensland court	Yes: By contract	Yes: By public policy	Yes: By s53B	Yes: QLD statute

How confidentiality arises, and its limits

The confidential nature of the mediation process may arise

by agreement between the parties
from the without prejudice nature of settlement negotiations
restrictions akin to confidentiality imposed by statute
in the case of the mediator, from mediator's standards or professional rules.

Confidentiality arising by agreement between the parties

This may arise from

a dispute resolution clause in a prior contract between the parties requiring them to resolve by mediation any disputes arising from the contract
a mediation agreement signed by the parties and those who attend the mediation before the mediation commences
a settlement agreement signed by the parties and those who attend the mediation upon reaching settlement in the mediation

Dispute resolution clause

Many contracts contain dispute resolution clauses. Under these clauses, the parties to the contract agree that for certain types of disputes they must try dispute resolution before they may sue in the courts. Such clauses often appear in contracts between service suppliers and consumers, or in standard form commercial contracts such the REIQ contract for sale of businesses.

Such clauses sometimes provide also for the confidential nature of the alternative dispute resolution process, for example from one such contract:-

"Neither party to this agreement may use any information or document obtained through the dispute resolution process established by this clause for any purpose other than in an attempt to settle the dispute."

Mediation agreement

It is usual prior to the commencement of the mediation process for each party to the mediation, and each attendee at the mediation including the mediator, to sign a mediation agreement. The agreement will contain a confidentiality clause.

Here are some typical clauses:-

NSW Bar:

Confidentiality of the Mediation
The Parties and the Mediator will not disclose any information or documents provided to them in the course of or for the purposes of the mediation to anyone not involved in the mediation unless

authorised by the disclosing Party to do so;

in accordance with a requirement imposed by or under a law of the State or the Commonwealth.

For the purposes of (a), the Parties are authorised to make disclosure to their legal advisors and/or their insurers on the condition that those persons agree to keep the information or documents confidential.
Each Party agrees to ensure that any person who attends the mediation on their behalf as an adviser, representative or otherwise, signs a confidentiality agreement in the form attached to this agreement as a condition of that person being allowed to attend the information.

IAMA (Rules): Rule 4: Confidentiality
1. The Mediator, the parties and all advisers and representatives of the parties shall:
a. except as provided in paragraph 2 of this Rule, keep all information disclosed during the mediation process confidential;
b. not use any information disclosed during the mediation process for any purpose other than the mediation;
c. if requested by the Mediator or or a party to do so, sign Confidentiality Agreements in the terms of this Rule.

2. The obligation of confidentiality under sub-paragraph a of paragraph 1 above shall apply except:
a. if disclosure is compelled by law;
b. to the extent necessary to give effect to the Agreement, or to enforce any agreement to settle or resolve the whole or any part of the Dispute;
c. where disclosure is only of the occurrence of the mediation and the occurrence of the mediation is relevant to subsequent arbitral, adjudicative or judicial proceedings relating to the Dispute.

LEADR mediation agreement (now replaced by IAMA rules)

19. The Parties and the Mediator will not unless required by law to do so, disclose to any person not present at the Mediation, nor use, any confidential information furnished during the Mediation unless such disclosure is to obtain professional advice or is to a person within that Party's legitimate field of intimacy, and the person to whom the disclosure is made is advised that the confidential information is confidential.

20. The Mediator agrees:

to keep confidential all information furnished by a Party to the Mediator on a confidential basis;

save with the consent of the Party who furnished such information not to disclose the information to any other Party.

It is interesting to note that the IAMA rules and the former LEADR mediation agreement above seek to restrain a party to the mediation agreement from "using" any confidential information furnished during the mediation. Such restrictive words were regarded as going too far by Finkelstein J when he was considering giving approval to liquidators to enter into a mediation agreement in Sonray Capital Markets Pty Ltd (in liquidation) [2010] FCA 1371.

The difficulty identified by Rolfe J in AWA Limited v Daniels (18 March 1992, unreported: BC 9201994) was that the court would need then to inquire and identify the information which came to a party in the mediation and treat that separately from information already in the party's mind which may have been confirmed by something which happened in the mediation.

In the same case, the trial judge Rogers CJ said:-

"Rolfe J was prepared to take the view . that objective evidence will not be excluded merely because the defendants learnt of the relevant facts in the course of the mediation. With very great respect I would prefer to consider that question further if, and when, it arises on some future occasion. If the fact be that the other side has absolutely no inkling of some matter, which, if known about is capable of being established by objective evidence, but which would not ordinarily come to the knowledge of the other side in the normal progress of litigation and its existence is revealed only by a statement made in the course of, and for the purposes, of the mediation, I would hesitate long before concluding that the objective evidence so revealed is admissible."
[AWA Ltd v Daniels (1992) 7 ACSR 463, Comm D]

Settlement agreement

It is quite common for a confidentiality clause to be inserted in a settlement agreement. As well as attempting to keep confidential the agreement reached between the parties, this might attempt to keep confidential all facts concerning the dispute itself and all documents disclosed in relation to the dispute.

Confidentiality arising as a matter of public policy from the without prejudice nature of settlement negotiations

Negotiations between parties are often described by them as "without prejudice" in which case they have a certain degree of protection from disclosure. It is also possible for negotiations attempting to settle a genuine dispute automatically to take on the nature of "without prejudice" discussions without expressly being referred to as such. As explained in Rush & Tompkins v GLC [1989] AC 1280, this is a rule of evidence established as a matter of public policy. The main reason for this rule is to encourage compromises by avoiding the embarrassment to a party which would arise if negotiations fail and their statements are later put in evidence: Village/Nine Network v Mercantile Mutual [1999] QCA 276 at [18].

Limit to the confidentiality arising in this way

Since the only way to restrain disclosure or use of confidential information is by resorting to the courts, there is a natural conflict between the court's power to restrain and its overriding aim to achieve justice. In such a conflict in the absence of statutory intervention (as to which see below) the court will always prevail. There will be an order of disclosure despite confidentiality if it is in the interest of justice.

A policy consideration arises here. On the one hand parties are encouraged by the court to settle their disputes and only have resort to the court if they are unable to do so. If in negotiations parties can rely on confidentiality of their discussions this is more likely to result in settlement. And when parties freely and with understanding enter into mediation agreements containing terms as to confidentiality, these should be respected and enforced if at all possible. And confidentiality clauses in settlement agreements should be encouraged since a party facing a number of potential claims may be much more likely to settle a dispute if that party knows that the settlement will be kept secret from other possible claimants.

Another view is that in order to achieve justice between the parties on all issues, the courts may need all the available evidence unrestrained by questions of confidentiality as between the parties.

There is approved dicta suggesting that the confidentiality of information gathered in without prejudice negotiations is limited to admissions which are made with a purpose connected with the settlement of the action, and does not extend to other communications: Field v Commissioner for Railways NSW (1955) 99 CLR 285, Betfair Pty Limited v Racing New South Wales (No 7) [2009] FCA 1140.

In Biovision v CGU Insurance [2010] VSC 589 Judd J set out some examples of court ordered disclosure of material which would otherwise be covered by the without prejudice rule as follows:-

"Thus the 'without prejudice' material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement, which is the point that Lindley L.J. was making in Walker v. Wilsher (1889) 23 Q.B.D. 335 and which was applied in Tomlin v. Standard Telephones & Cables Ltd. [1969] 1 W.L.R. 1378. The court will not permit the phrase to be used to exclude an act of bankruptcy: see In re Daintrey, Ex parte Holt [1893] 2 Q.B. 116 nor to suppress a threat if an offer is not accepted: see Kitcat v. Sharp (1882) 48 L.T. 64. In certain circumstances the 'without prejudice' correspondence may be looked at to determine a question of costs after judgment has been given: Cutts v. Head [1984] Ch. 290. There is also authority for the proposition that the admission of an 'independent fact' in no way connected with the merits of the cause is admissible even if made in the course of negotiations for a settlement. Thus an admission that a document was in the handwriting of one of the parties was received in evidence in Waldridge v. Kennison (1794) 1 Esp. 142. I regard this as an exceptional case and it should not be allowed to whittle down the protection given to the parties to speak freely about all issues in the litigation both factual and legal when seeking compromise and, for the purpose of establishing a basis of compromise, admitting certain facts. If the compromise fails the admission of the facts made for the purpose of the compromise should not be held against the maker of the admission and should therefore not be received in evidence."

In Abriel v Australian Guarantee Corp [2000] FCA 1198 it was conceded by counsel (and not determined by the court [5]) that events occurring in the mediation were admissible in evidence in a case where there was an allegation of undue influence.

Where parties have agreed the extent of confidentiality they are on somewhat stronger ground, but the court retains the discretion to admit material even if the parties have agreed otherwise.

Lawyers are well used to forecasting how such discretion may be exercised. So Ian Hanger AM QC has expressed the view that a party to a mediation agreement would not be in breach of contract or confidence in disclosing a threat to commit a serious criminal act. He also noted that the Victorian Law Institute was of the view that this exception extended to misleading or deceptive conduct, conduct contrary to trade practices or fair trading legislation, tortuous conduct, and any disclosure which would prevent a party from misleading the court (Queensland Bar Association Mediator's Conference paper 2010 pages 5 and 12).

Statutory scheme in s131 Evidence Act 1995 (Cth) applies anyway

It has been held that "without prejudice" offers are admissible in the Federal courts on the question of costs under s131(2)(h) of the Evidence Act 1995 (Cth) (below). In particular, in Australian Competition & Consumer Commission v Australian Safeway Stores (No 3) [2002] FCA 1294, Goldberg J stated at [17]:-

"The authorities to which I have referred make it clear that the policy lying behind s 131 of the Evidence Act is twofold. First, it is to lay down a statutory basis for excluding evidence of communications relating to attempts to settle disputes. Secondly, it is to provide specific exceptions to such exclusion. The exception found in s131(2)(h) relates to the probative value or probative nature of the contents of the communication and not to the manner in which the communication came initially to be subjected to the protection from being adduced into evidence found in subs (1) of s131."

This approach has been held to extend to without prejudice negotiations carried out in a settlement conference: Gilberg v Maritime Super Pty Ltd (No. 2) [2009] NSWCA 394, and also in a mediation where there is no mediation agreement: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 238.

And in a somewhat bolder move, Mansfield J held that the principle extended to negotiations carried out in a mediation even where there was a mediation agreement with contrary provisions (Silver Fox Co v Lenard's (No 3) [2004] FCA 1570). In Azzi v Volvo Car Australia [2007] NSWSC 375 at [24], while Brereton J agreed with the approach of Mansfield J, he pointed out that in order for it to work, section 131 had to apply in the first place. And in a court ordered mediation, other statutory provisions applied (see section 53B below).

It is to be noted that the Evidence Act 1995 also applies to ACT, and that there is similar wording in the Evidence Act 1995 (NSW), Evidence Act 2001 (TAS) and the Evidence Act 2008 (VIC). But there is no similar provision in Queensland.

Effectively therefore the current state of the law is that as far as the Federal, ACT, NSW, TAS and VIC courts are concerned, s131(1) and s131(2) of the Evidence Act 1995 (Cth) (below) and their equivalents, provide a statutory framework for admissibility of communications given at and documents prepared for voluntarily organised mediations, even to the extent of overriding confidentiality clauses in a mediation agreement.

Section 131 only provides protection for a communication given, and a document prepared "in connection with an attempt to negotiate a settlement of the dispute". Other types of communications and documents have no protection. So it would appear that despite a mediation agreement, evidence could be given in these courts about these other types of communications in a mediation organised voluntarily by the parties. If this is right, it has the rather unsavoury consequence that a party may regard a mediation organised voluntarily in these cases as an opportunity to go fishing for facts for use at the trial, even if the party has agreed otherwise.

It remains to be seen whether it is possible to restore the position by agreeing in the mediation agreement to opt out of the provisions of s131.

Restrictions akin to confidentiality imposed by statute

Claims in the Federal courts or in ACT are covered by s131 of the Evidence Act 1995 (Cth), which prohibits any evidence being adduced in those courts of any communication made, or document prepared, in connection with an attempt to negotiate a settlement of a dispute, unless within one of the exceptions in subsection (2). There is a similar law for claims in the courts of NSW, TAS, and VIC. This provision covers any negotiations organised independently by the parties but mediations ordered by the court come under separate provisions (see below).

The wording of the section is as follows:-

131 Exclusion of evidence of settlement negotiations

(1) Evidence is not to be adduced of:

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply if:

(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or

(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(h) the communication or document is relevant to determining liability for costs; or

(i) making the communication, or preparing the document, affects a right of a person; or

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

(3) For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act was committed; and

(b) a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act; the court may find that the communication was so made or the document so prepared.

(4) For the purposes of paragraph (2)(k), if:

(a) the abuse of power is a fact in issue; and

(b) there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power;
the court may find that the communication was so made or the document was so prepared.

(5) In this section:

(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and

(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and

(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and

(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and

(e) a reference to commission of an act includes a reference to a failure to act.

(6) In this section:

power means a power conferred by or under an Australian law.

Relevant definitions:

Australian court means:

(a) the High Court; or

(b) a court exercising federal jurisdiction; or

(c) a court of a State or Territory; or

(d) a judge, justice or arbitrator under an Australian law; or

(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or

(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

Australian law means a law of the Commonwealth, a State or a Territory.
Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court.

Note that by section 4(1) the Act applies only to proceedings in a federal court or an ACT court (although there are similar laws in NSW, TAS and VIC).

Federal court ordered mediations

Where a mediation is ordered by the Federal Court of Australia, section 53B of the Federal Court of Australia Act 1976 provides:-

Admissions made to mediators

Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:

(a) in any court (whether exercising federal jurisdiction or not); or

(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

Queensland court ordered mediations

Where a mediation is ordered by a Queensland court, except in a claim based on fraud occurring in the mediation, nothing done or said or an admission made in such a mediation is admissible in court. A mediator has immunity but cannot disclose to others what happened in the mediation without reasonable excuse. This is by sections 52 to 54 of the Civil Proceedings Act 2011. There are similar provisions for QCAT mediations.

The wording of these provisions is as follows:-

52 Ordinary protection and immunity allowed

(1) In performing the functions of an ADR convenor under a referring order, an ADR convenor has the same protection and immunity as a Supreme Court judge performing a judicial function.

(2) A party attending an ADR process has the same protection and immunity the party would have if the ADR process were a proceeding being heard before the court.

(3) A witness attending in an ADR process has the same protection and immunity as a witness attending before the court.

(4) A document produced at, or used for, an ADR process has the same protection during the ADR process it would have if produced before the court.

(5) In subsection (2)-

party includes a party's lawyer or agent.

53 Evidence from ADR process

(1) Evidence of anything done or said, or an admission made, at an ADR process about the dispute is admissible at the trial of the dispute or in another civil proceeding before the court or elsewhere only if all parties to the dispute agree.

(2) In subsection (1)-

civil proceeding does not include a civil proceeding founded on fraud alleged to be connected with, or to have happened during, the ADR process.

54 Preservation of confidentiality

(1) An ADR convenor must not, without reasonable excuse, disclose information coming to the ADR convenor's knowledge during an ADR process.

Maximum penalty-50 penalty units.

(2) It is a reasonable excuse to disclose information if the disclosure is made-

(a) with the agreement of all the parties to the ADR process; or

(b) for the purpose of giving effect to this part; or

(c) for statistical purposes not likely to reveal the identity of a person to whom the information relates; or

(d) for an inquiry or proceeding about an offence happening during the ADR process; or

(e) for a proceeding founded on fraud alleged to be connected with, or to have happened during, the ADR process; or

(f) under a requirement imposed under an Act.

Relevant definitions:
ADR convenor means a mediator or case appraiser.
For ADR process see section 39. It includes court ordered mediations and all steps involved in them.

In Underwood v Underwood [2009] QSC 107 when considering what costs order to make, Jones J refused to consider one party's non-acceptance of a better offer made at a court-ordered mediation because not all parties to the mediation agreed.

An offer made in mediation is a thing done or said in a mediation and is therefore inadmissible even on the question of costs: Brereton J (when considering the NSW equivalent) in Azzi v Volvo Car Australia [2007] NSWSC 375.

Dispute Resolution Centre mediations

Mediations carried out by a Dispute Resolution Centre otherwise than upon a referral by the Supreme Court, District Court, Magistrates Court or QCAT are covered by the Dispute Resolution Centres Act 1990 (Queensland).

The relevant part of that Act is:-

36 Privilege

(4) Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body.

(5) A document prepared for the purposes of, or in the course of, or pursuant to, a mediation session, or any copy thereof is not admissible in evidence in any proceedings before any court, tribunal or body.

(6) Subsections (4) and (5) do not apply with respect to any evidence or document-

(a) where the persons in attendance at, or named during, the mediation session and, in the case of a document, all persons named in the document-consent to admission of the evidence or document; or

(b) in proceedings instituted with respect to-

(i) any act or omission in connection with which a disclosure has been made pursuant to section 37(2)(c); or

(ii) an offence under section 37(3) concerning the disclosure of the evidence or document.

(7) This section does not apply in relation to a dispute that is the subject of a referring order.

(8) To remove any doubt, it is declared that the Act that applies to the mediation of a dispute that is the subject of a referring order is the Act under which the referring order is made.

Confidentiality arising in the case of the mediator, from mediator's standards or professional rules

Confidentiality arising from the mediator's practice standards

Practice Standard 6 of the Australian National Mediator Standards (September 2007) restrains a mediator from voluntarily disclosing information obtained during the mediation process. It also requires the mediator to discuss with the parties to the mediation the question of confidentiality and explain any limits to it. It requires any mediation agreement to deal with the question of confidentiality. Clause 1 of the Practice Standards states that the standards must be complied with by any mediator who voluntarily decides to become accredited under the National Mediator Accreditation Scheme. It is doubtful whether these standards are themselves capable of conferring any rights upon the parties to the mediation. Instead, if a mediator was in breach of the standards, it is possible that continued accreditation of that mediator might be refused upon its two-year renewal (clause 1 of the Approval Standards under the National Mediator Accreditation System makes it clear that renewal would be subject to compliance with the Practice Standards).

However, it is conceivable that rights would be conferred upon parties to a mediation under these standards, if there were express or implied terms to that effect. For example if it was part of the mediator's contract with the parties that the mediation would be conducted in accordance with the Australian National Mediator Practice Standards. The same concept applies to confidentiality arising from the mediator's professional rules.

The wording of clause 6 is as follows:-

6 Confidentiality

A mediator should respect the confidentiality of the participants.

1) A mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information obtained except:

a) non-identifying information for necessary administrative, research, supervisory or educational purposes; or

b) with the consent of the participants to the mediation process; or

c) when required to do so by law; or

d) where permitted by existing ethical guidelines or requirements and the information discloses an actual or potential threat to human life or safety.

2) The mediator will clarify the participants expectations of confidentiality before undertaking the mediation process. Any written agreement to enter into the process should include provisions concerning confidentiality.

3) Before undertaking the mediation process, the mediator will inform the participants of the limitations of confidentiality, such as statutory, judicially or ethically mandated reporting, such as any reporting required pursuant to professional ethical requirements.

4) If the mediator holds separate sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon before the sessions.

5) If subpoenaed, or otherwise notified to testify or to produce documents, the mediator should attempt to inform the participants as soon as reasonably practicable. The mediator should not give evidence without an order of the Court or Tribunal if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants. The mediator may include indemnification provisions in relation to costs incurred (see Section 3(2)(f)).

6) With the participants' consent, the mediator may discuss the mediation process with the participants' lawyers and other expert advisors where such advisers have not attended all or part of the actual mediation session.

7) Where the participants reach an agreement in a mediation process, the substance of the proposed agreement may, with the permission of participants, be disclosed to their respective representatives, advisors or others and may be used in a de-identified form for debriefing, research processes and discussion purposes.

8) The mediator should maintain confidentiality in the storage and disposal of client records and must ensure that office and administrative staff maintain such confidentiality. Overall, mediators are not required to retain documents relating to a dispute although they may retain any written agreement to enter into the mediation process and any written agreement as to outcomes. Some mediators may also choose to retain notes relating to the content of the dispute particularly where duty-of-care or duty-to-warn issues are identified.

Confidentiality arising from professional rules: Queensland solicitors

Queensland solicitors acting as mediators are covered by the "Standards of Conduct for Solicitor Mediators" approved by the Executive Committee of the Queensland Law Society on 23 September 1998. In clause 5, solicitor mediators must treat all information revealed in a mediation as confidential, unless coming within one of the exceptions, and must not voluntarily disclose any information about the content or outcome of the mediation.

The wording of clause 5 is as follows:-

5 Confidentiality

5.1 Confidentiality is a vital element in the mediation process as it encourages the candour that is so essential in allowing a full exploration of all the issues involved in a dispute. Subject to the requirements of law, a mediator must treat all information revealed in a mediation as confidential except for the following:

5.1.1 information that a mediator is required to divulge by statute, court order or by professional standards of conduct;

5.1.2 information that in the opinion of the mediator indicates a danger of physical harm to a party to the mediation or a third party;

5.1.3 information that the parties have agreed may be disclosed by the mediator;

5.1.4 information that the mediator informs the parties at the outset will not be protected; or

5.1.5 information directly relevant to alleged unethical conduct by a solicitor involved in a mediation.

5.2 A mediator must not reveal any information obtained from a party in a caucus or private meeting during the course of the mediation to the other party or parties without first having gained the permission of that party to reveal the information.

5.3 Subject to the exceptions set out in clause 5.1, a mediator must not voluntarily disclose any information about the content or outcome of a particular mediation, without the prior consent of all the parties. If subpoenaed or otherwise required to testify in subsequent court proceedings involving a mediated dispute or any aspect of it, a mediator will inform all the other parties to the mediation appropriately.

5.4 A mediator must maintain the confidentiality in the storage and disposal of records and shall render anonymous all identifying information when materials are used for subsequent mediation research or training.

5.5 A mediator must not attempt to record or to make a transcript of any mediation proceedings. The mediator must inform the parties that the mediator is conducted on a "without prejudice" basis and that no information disclosed during the mediation can be used in any subsequent court conversations or conferences, without the consent of the parties.

Confidentiality arising from professional rules: Queensland barristers

Queensland barristers acting as mediators were (for mediations carried out before 23 December 2011) are covered by Rule 136 Barristers Rule 2007.

This stated as follows:-

A barrister acting as a mediator has the same obligations of confidentiality, with respect to communications made in the course of a mediation, as he or she would have if such communications had been made by a client to him or her as a barrister.

By this brief provision, the rule of confidentiality applying to barristers when acting for clients apply also to all communications made in the court of a mediation.

The relevant part of those rules are contained in Rules 109 and 110 of the Barristers Rule which state as follows:-

109. A barrister must not disclose (except as compelled by law) or use in any way in the course of practice confidential information obtained by the barrister concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until:

(a) the information has been published;

(b) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or

(c) the person has consented to the barrister disclosing or using the information generally or on specific terms.

110. A barrister must not disclose (except as compelled by law) or use confidential information under Rule 109(c) in any way other than as permitted by the specific terms of the person's consent.

The Barristers' Conduct Rules 2011 came into force on 23 December 2011 and are based on the National Rules. They have no specific provision covering barristers acting as mediators.

Jeremy Gordon
Queensland Bar

(1) Evidence is not to be adduced of:
	(a)	a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
	(b)	a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if:
	(a)	the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
	(b)	the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
	(c)	the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or
	(d)	the communication or document included a statement to the effect that it was not to be treated as confidential; or
	(e)	the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
	(f)	the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or
	(g)	evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
	(h)	the communication or document is relevant to determining liability for costs; or
	(i)	making the communication, or preparing the document, affects a right of a person; or
	(j)	the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
	(k)	one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.
(3) For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:
	(a)	the fraud, offence or act was committed; and
	(b)	a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act; the court may find that the communication was so made or the document so prepared.
(4) For the purposes of paragraph (2)(k), if:
	(a)	the abuse of power is a fact in issue; and
	(b)	there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power; the court may find that the communication was so made or the document was so prepared.
(5) In this section:
	(a)	a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and
	(b)	a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and
	(c)	a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and
	(d)	a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and
	(e)	a reference to commission of an act includes a reference to a failure to act.
(6) In this section:
		power means a power conferred by or under an Australian law.

Australian court means:
(a)	the High Court; or
(b)	a court exercising federal jurisdiction; or
(c)	a court of a State or Territory; or
(d)	a judge, justice or arbitrator under an Australian law; or
(e)	a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f)	a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence.

Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under section 53A is not admissible:
(a)	in any court (whether exercising federal jurisdiction or not); or
(b)	in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

52 Ordinary protection and immunity allowed
(1)	In performing the functions of an ADR convenor under a referring order, an ADR convenor has the same protection and immunity as a Supreme Court judge performing a judicial function.
(2)	A party attending an ADR process has the same protection and immunity the party would have if the ADR process were a proceeding being heard before the court.
(3)	A witness attending in an ADR process has the same protection and immunity as a witness attending before the court.
(4)	A document produced at, or used for, an ADR process has the same protection during the ADR process it would have if produced before the court.
(5)	In subsection (2)-
	party includes a party's lawyer or agent.

53 Evidence from ADR process
(1)	Evidence of anything done or said, or an admission made, at an ADR process about the dispute is admissible at the trial of the dispute or in another civil proceeding before the court or elsewhere only if all parties to the dispute agree.
(2)	In subsection (1)-
	civil proceeding does not include a civil proceeding founded on fraud alleged to be connected with, or to have happened during, the ADR process.

54 Preservation of confidentiality
(1)	An ADR convenor must not, without reasonable excuse, disclose information coming to the ADR convenor's knowledge during an ADR process.
		Maximum penalty-50 penalty units.
(2)	It is a reasonable excuse to disclose information if the disclosure is made-
	(a)	with the agreement of all the parties to the ADR process; or
	(b)	for the purpose of giving effect to this part; or
	(c)	for statistical purposes not likely to reveal the identity of a person to whom the information relates; or
	(d)	for an inquiry or proceeding about an offence happening during the ADR process; or
	(e)	for a proceeding founded on fraud alleged to be connected with, or to have happened during, the ADR process; or
	(f)	under a requirement imposed under an Act.

36 Privilege
(4)	Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body.
(5)	A document prepared for the purposes of, or in the course of, or pursuant to, a mediation session, or any copy thereof is not admissible in evidence in any proceedings before any court, tribunal or body.
(6)	Subsections (4) and (5) do not apply with respect to any evidence or document-
	(a)	where the persons in attendance at, or named during, the mediation session and, in the case of a document, all persons named in the document-consent to admission of the evidence or document; or
	(b)	in proceedings instituted with respect to-
		(i) any act or omission in connection with which a disclosure has been made pursuant to section 37(2)(c); or
		(ii) an offence under section 37(3) concerning the disclosure of the evidence or document.
(7)	This section does not apply in relation to a dispute that is the subject of a referring order.
(8)	To remove any doubt, it is declared that the Act that applies to the mediation of a dispute that is the subject of a referring order is the Act under which the referring order is made.

6 Confidentiality
A mediator should respect the confidentiality of the participants.
1)	A mediator shall not voluntarily disclose to anyone who is not a party to the mediation any information obtained except:
	a)	non-identifying information for necessary administrative, research, supervisory or educational purposes; or
	b)	with the consent of the participants to the mediation process; or
	c)	when required to do so by law; or
	d)	where permitted by existing ethical guidelines or requirements and the information discloses an actual or potential threat to human life or safety.
2)	The mediator will clarify the participants expectations of confidentiality before undertaking the mediation process. Any written agreement to enter into the process should include provisions concerning confidentiality.
3)	Before undertaking the mediation process, the mediator will inform the participants of the limitations of confidentiality, such as statutory, judicially or ethically mandated reporting, such as any reporting required pursuant to professional ethical requirements.
4)	If the mediator holds separate sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon before the sessions.
5)	If subpoenaed, or otherwise notified to testify or to produce documents, the mediator should attempt to inform the participants as soon as reasonably practicable. The mediator should not give evidence without an order of the Court or Tribunal if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants. The mediator may include indemnification provisions in relation to costs incurred (see Section 3(2)(f)).
6)	With the participants' consent, the mediator may discuss the mediation process with the participants' lawyers and other expert advisors where such advisers have not attended all or part of the actual mediation session.
7)	Where the participants reach an agreement in a mediation process, the substance of the proposed agreement may, with the permission of participants, be disclosed to their respective representatives, advisors or others and may be used in a de-identified form for debriefing, research processes and discussion purposes.
8)	The mediator should maintain confidentiality in the storage and disposal of client records and must ensure that office and administrative staff maintain such confidentiality. Overall, mediators are not required to retain documents relating to a dispute although they may retain any written agreement to enter into the mediation process and any written agreement as to outcomes. Some mediators may also choose to retain notes relating to the content of the dispute particularly where duty-of-care or duty-to-warn issues are identified.

5 Confidentiality
5.1	Confidentiality is a vital element in the mediation process as it encourages the candour that is so essential in allowing a full exploration of all the issues involved in a dispute. Subject to the requirements of law, a mediator must treat all information revealed in a mediation as confidential except for the following:
	5.1.1 information that a mediator is required to divulge by statute, court order or by professional standards of conduct;
	5.1.2 information that in the opinion of the mediator indicates a danger of physical harm to a party to the mediation or a third party;
	5.1.3 information that the parties have agreed may be disclosed by the mediator;
	5.1.4 information that the mediator informs the parties at the outset will not be protected; or
	5.1.5 information directly relevant to alleged unethical conduct by a solicitor involved in a mediation.
5.2	A mediator must not reveal any information obtained from a party in a caucus or private meeting during the course of the mediation to the other party or parties without first having gained the permission of that party to reveal the information.
5.3	Subject to the exceptions set out in clause 5.1, a mediator must not voluntarily disclose any information about the content or outcome of a particular mediation, without the prior consent of all the parties. If subpoenaed or otherwise required to testify in subsequent court proceedings involving a mediated dispute or any aspect of it, a mediator will inform all the other parties to the mediation appropriately.
5.4	A mediator must maintain the confidentiality in the storage and disposal of records and shall render anonymous all identifying information when materials are used for subsequent mediation research or training.
5.5	A mediator must not attempt to record or to make a transcript of any mediation proceedings. The mediator must inform the parties that the mediator is conducted on a "without prejudice" basis and that no information disclosed during the mediation can be used in any subsequent court conversations or conferences, without the consent of the parties.

109.	A barrister must not disclose (except as compelled by law) or use in any way in the course of practice confidential information obtained by the barrister concerning any person to whom the barrister owes some duty or obligation to keep such information confidential unless or until:
	(a)	the information has been published;
	(b)	the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or
	(c)	the person has consented to the barrister disclosing or using the information generally or on specific terms.
110.	A barrister must not disclose (except as compelled by law) or use confidential information under Rule 109(c) in any way other than as permitted by the specific terms of the person's consent.

Confidentiality of mediations(in Queensland)