Is Commercial Mediation Confidential?

Why Confidentiality Is One of Mediation’s Most Important Features

Confidentiality is one of the reasons business owners choose commercial mediation over litigation. In contested court proceedings, the facts of the dispute, the financial details, the internal communications and the behaviour of the parties are all exposed in a public forum and become part of a public court record. In commercial mediation, what is said and what is offered stays in the room. This confidentiality allows both parties to engage with the real issues in the dispute, to make proposals they might be reluctant to make in proceedings, and to speak frankly about their interests and concerns in a way that adversarial litigation does not permit.

Understanding precisely what the confidentiality protections cover, where their limits lie, and how they are documented is important for anyone participating in or advising on commercial mediation. This page is part of the Commercial Mediation Knowledge Guide. If you need a commercial mediator see my commercial mediator page.

The Without Prejudice Rule

The principal legal protection for confidentiality in commercial mediation is the without prejudice rule. Where communications are made without prejudice, they are made for the purpose of genuine attempts to settle a dispute and cannot be admitted in evidence in subsequent proceedings. Discussions in mediation, written position statements exchanged for the purpose of the mediation, and settlement proposals made during the mediation are all generally protected by the without prejudice rule.

The rule prevents a party from later saying in court that the other side offered to settle for a particular sum, made admissions about the strength of their case, or expressed views about the merits of the dispute during the mediation. This protection is essential to making mediation a genuinely safe forum for candid exploration of settlement. If what a party says in mediation could be used against them in subsequent proceedings, parties would be reluctant to engage honestly with the process, defeating its purpose entirely.

The without prejudice rule is not absolute. It can be overridden where the communications are alleged to amount to fraud, misrepresentation, undue influence or some other vitiating factor, or where there is a question about whether a binding agreement has been reached. Legal advice on the specific application of the rule in any particular situation should be obtained from a qualified specialist.

Confidentiality in the Mediation Agreement

In addition to the protection of the without prejudice rule, commercial mediation agreements typically contain express confidentiality provisions that bind all parties, including the mediator, to keep the mediation and its contents confidential. These contractual obligations supplement and reinforce the without prejudice protection.

The mediation agreement will usually provide that neither party may disclose to any third party what was said, offered or agreed during the mediation, that the mediator may not be compelled to give evidence in any subsequent proceedings about what occurred during the mediation, and that even the fact that mediation took place and the outcome of it are to be kept confidential unless both parties agree otherwise.

Confidentiality in Private Caucus Sessions

One of the most important confidentiality protections in commercial mediation is the confidentiality of the private caucus session. When the mediator meets with one party in a private session, what that party says is confidential to that session. The mediator will not share it with the other party without being given permission to do so. This allows each party to speak frankly to the mediator about their real interests, concerns and bottom-line positions without fear that this information will be transmitted to the other side.

The confidentiality of private sessions is what gives commercial mediation much of its power. It allows the mediator to understand the real interests on each side, to reality-test each party’s position frankly without those conversations being visible to the other party, and to explore settlement options in a space that is protected from the tactical posturing that characterises most commercial negotiation.

What Confidentiality Does Not Cover

Confidentiality in commercial mediation has limits. Disclosures that reveal the commission of a crime, child safeguarding concerns, or other matters where there is a legal or professional obligation to report override the without prejudice protection. Similarly, a signed settlement agreement reached at mediation is enforceable as a contract and can be referred to and relied on in court proceedings to enforce its terms. The confidentiality protections apply to the process of reaching settlement, not to the settlement agreement itself once it has been executed.

Information that was in the public domain before the mediation, or that exists independently of the mediation and was already available to the other party, does not become confidential simply because it is discussed at the mediation. The without prejudice protection applies to communications made for the purpose of settlement, not to the underlying facts of the dispute.

The Mediator and Compelled Evidence

A commercial mediator cannot generally be compelled to give evidence about what occurred during the mediation, including what was said, what was offered and how the parties behaved. This protection is reinforced by the express provisions of the mediation agreement and reflects the public policy interest in encouraging parties to engage openly and candidly with the mediation process. A mediator who could be called as a witness about what a party said in a private session would fundamentally undermine the trust that makes mediation effective.

Published Resources

My book Winning in Commercial Mediation: A Business User’s Guide covers the confidentiality framework in full, including the without prejudice rule and its exceptions, the confidentiality provisions of the mediation agreement, and the specific questions about confidentiality that arise most frequently in commercial mediations. For the specific legal question of whether a distinct mediation privilege exists in English law see also the chapter on is there a specific mediation privilege.

See all books.

Frequently Asked Questions

Can I share what happened at mediation with my board or investors?

The mediation agreement and the without prejudice rule may restrict what you can share, and with whom. You should check the specific provisions of the mediation agreement and seek legal advice before sharing details of the mediation with third parties. It is common for the mediation agreement to permit sharing with advisers and internal decision-makers who need the information to assess settlement options, subject to appropriate confidentiality obligations.

If I make an offer at mediation that is not accepted, can it be used against me in proceedings?

No. Settlement offers made in mediation are protected by the without prejudice rule and cannot be used as evidence in subsequent proceedings. This protection is essential to allowing parties to explore settlement options without risk of the proposals being used against them if no settlement is reached.

Is the settlement agreement itself confidential?

The settlement agreement is a binding contract and can be referred to in court proceedings to enforce its terms. However, the parties can include confidentiality provisions in the settlement agreement itself, limiting what each party can say about the terms to third parties. Whether such provisions are included and how they are drafted is a matter for the parties to agree with their lawyers at the time of settlement.

Get in Touch

If you have questions about the confidentiality of commercial mediation or need a commercial mediator, I would be glad to discuss your situation.

Call 020 4538 0246, use the contact form below, or book a call directly.

Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content relates to the law of England and Wales only. Always seek independent legal advice from a qualified specialist before making decisions that affect your legal rights or commercial interests. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice, contact me here.

Mediation – Is Commercial Mediation Confidential?