Confidentiality in Mediation
| Author | Mirela Fana |
| Pages | 8-17 |
8
C
onfi dentialit
y
in Mediatio
n
P
h
D M
i
r
ela
F
a
n
a
Ab
str
a
c
t
Mediation is a process in which participants in a con
fl
ict using a neutral mediator systematically
identi
f
y problems and ways to solve them, look
f
or alternatives and try to reach a consensus
a
greement that would be in their interests (Price, 2014). Mediation,
fi
rst o
f
all, should be
understood as a process that allows parties to push the con
fl
ict in the direction o
f
its resolution.
Mediation is a targeted intervention that can
fi
rst ease the con
fl
ict, then prepare the ground
f
or making in
f
ormed decisions, and,
fi
nally, solve some problem.
E
ven i
f
not all elements o
f
a
dispute are resolved, an existing con
fl
ict through mediation can be be er understood by its
participants and trans
f
erred to a manageable level. Mediation is ideal
f
or resolving disputable
s
ituations that are based on a signi
fi
cant number o
f
problems and imply the continuation o
f
relations between the parties, since it can create an interaction model suitable
f
or resolving
fu
t
u
r
e
c
o
n
fl
i
cts.
K
e
y
words:
c
on
fi
dentiality, mediation.
I
ntr
odu
ct
io
n
U
nder the
p
rinci
p
le is understood the basic initial
p
osition o
f
an
y
scienti
fi
c s
y
stem,
t
heor
y
, ideological direction (S
p
encer & Brogan, 2006).
I
n turn, the
p
rinci
p
les o
f
m
ediation are de
fi
ned as the
f
undamental
p
rinci
p
les o
f
organization and conduct
of
mediation as a non-divisive wa
y
o
f
resolving legal dis
p
utes (
A
lrashdan, 2011).
I
t
s
hould be noted that in the legal literature there is no single a
pp
roach to the list and
c
lassi
fi
cation o
f
the
p
rinci
p
les o
f
mediation. The same is true o
f
the a
pp
roaches to this
i
ssue introduced b
y
the national legislation o
f
di
erent countries and international
a
cts.
A
t the same time, in s
p
ite o
f
the existing di
erences, one can distinguish the
p
rinci
pl
es t
h
at are ca
ll
e
d
p
ractica
lly
by
a
ll
researc
h
ers an
d
are intro
d
uce
d
in t
h
e
l
egislation o
f
the overwhelming majorit
y
o
f
countries - the
p
rinci
p
le o
f
con
fi
dentialit
y
.
Con
fi
dentialit
y
, or kee
p
ing in
f
ormation secret, is the most im
p
ortant
p
rinci
p
le o
f
m
ediation.
I
ts meaning is that nothing o
f
what is ha
pp
ening during the
p
rocedure
b
ecomes known to an
y
one exce
p
t the
p
artici
p
ants in the mediation. Con
fi
dentialit
y
p
rovides an o
pp
ortunit
y
f
or honest and o
p
en conversation, which is necessar
y
f
or success. Con
fi
dentialit
y
in mediation has several levels:
f
rom kee
p
ing secret
i
n
f
ormation about the conduct o
f
the mediation
p
rocedure as such to the
f
ree
d
isclosure b
y
the
p
arties o
f
what ha
pp
ened during the
p
rocedure (
A
lrashdan, 2011).
T
he
fl
exibilit
y
o
f
the con
fi
dentialit
y
regime is that the limits
f
or the distribution o
f
i
n
f
ormation b
y
the
p
arties are set b
y
themselves. The task o
f
the mediator is onl
y
to
i
n
f
orm them about the risks and advantages o
f
the communication to third
p
arties o
f
i
n
f
ormation that became known in the
p
rocess o
f
conducting mediation (S
p
encer &
B
rogan, 2006). Ver
y
o
en, the
p
arties enter into a se
p
arate con
fi
dentialit
y
agreement,
w
h
ic
h
is a ac
h
e
d
to t
h
e agreement on t
h
e me
d
iation
p
roce
d
ure
.
Vol . 5 No. 1
March, 2019
Academic Journal of Business, Administration, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
ISSN 2410-3918
Acces online at www.iipccl.org
To continue reading
Request your trial