The Importance of Confidentiality in Mediation for Family and Property Matters.
Confidentiality is a fundamental principle of mediation, especially in sensitive areas like family and property matters.
In this blog, we’ll explore why confidentiality is vital in the mediation process and how it contributes to building trust, encouraging open communication, and ultimately, achieving successful and productive resolutions.
The confidentiality of your information is an important underlying protection provided to this process.
ADRAMS has established systems to support our compliance with our legal and ethical obligations to protect you and inform you about the limits to confidentiality
Many of our services are provided under the Family Law Act (1975). Section 10H indicates that Family Dispute Resolution Practitioners must not disclose a communication made in FDR unless the disclosure is required or authorised under the Act.
The Parties and the Mediator will not, unless required by law to do so,
- Disclose any confidential information furnished during the Mediation to any person not present at the Mediation,
- Use any confidential information unless such disclosure is to obtain professional advice or is to a person within that Party’s legitimate field of intimacy
Additionally, ADRAMS ensures that the person to whom the disclosure is made, is advised that the confidential information is private, and confidential.
ADRAMS (Ascent Dispute Resolution and Mediation Services) implements processes to support compliance with defined legal and ethical obligations. These processes are designed to protect and inform clients about the limitations to confidentiality in mediation.
In Mediation, the Mediator, the mediating parties and all advisers and representatives of the parties must not disclose to anyone outside the mediation, unless specifically authorised by the parties or unless compelled to by law. Mediation is confidential, as far as the relevant laws define.
The Mediator’s at ADRAMS are committed to providing you with a confidential service. However, there are limitations to this confidentiality, these limitations are outlined below.
LIMITS TO CONFIDENTIALITY
We may only disclose personal information with the consent of the party making the disclosure or in the case of a person under 18, with the consent of each of the child’s parents or if we are required to do so by law.
Obligations outlined in the Family Law Act 1975 Section 10H
A FDR Practitioner must disclose a communication made in FDR if he or she reasonably believes that the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory e.g. to comply with legislation requiring mandatory disclosure of suspected child abuse.
A FDR Practitioner may disclose a communication made in FDR if he or she reasonably believes that the disclosure is necessary for the purpose of:
a) Protecting a child from the risk of physical or psychological harm
b) Preventing or lessening a serious and imminent threat to the life or health of a person
c) Reporting the commission, or preventing the likely commission, of an offense involving violence or a threat of violence to a person
d) Preventing or lessening a serious and imminent threat to the property of a person
e) Reporting the commission or preventing the likely commission of an offense involving intentional damage to the property of a person or a threat of damage to property.
f) Assisting an independent children’s lawyer to properly represent a child’s interests.
If the Mediator has gained written consent from the party to whom the confidentiality is owed.
- With a participant’s written consent, a mediator may discuss the mediation, or any proposed agreement, with that participant’s advisors or with relevant third parties.
The Parties and the Mediator will not, unless required by law to do so:
- Disclose any confidential information said during the Mediation to any person not present at the Mediation,
- Use any confidential information unless such disclosure is to obtain professional advice or is to a person within that Party’s legitimate field of intimacy
- Make certain that the person to whom the disclosure is made, is advised that the confidential information is private, and confidential.
Confidentiality and Inadmissibility (FAMILY LAW ACT 1975 SECTION 10J)
The Family Law Act 1975 (Cth) provides that anything said or done during the FDR process is not admissible in any court proceedings.
Communications made in FDR are not admissible in any court or proceedings, in any jurisdiction.
Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is also inadmissible in any court or proceedings in any jurisdiction.
An admission or disclosure that indicates that a child under 18 has been abused or is at risk of abuse may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
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The Trust Factor:
- Why trust is essential in mediation
- How confidentiality fosters trust among participants
- The impact of trust on the willingness to engage in open dialogue
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Encouraging Open Communication:
- The role of confidentiality in creating a safe environment
- How participants are more likely to share their perspectives and concerns
- Encouraging honest and transparent conversations
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Protecting Privacy and Vulnerability:
- The sensitive nature of family and property matters
- Why participants may be hesitant to engage without confidentiality
- The assurance that personal information won’t be used against them
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Effective Problem-Solving:
- How confidentiality allows for brainstorming and exploring creative solutions
- The freedom to propose ideas without fear of judgment
- Encouraging a focus on the issues at hand rather than personal histories
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Legal and Ethical Framework:
- The legal protections and ethical standards surrounding confidentiality in mediation
- The mediator’s responsibility in maintaining confidentiality
- The exceptions and limitations to confidentiality in mediation
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Building Agreements on a Foundation of Trust:
- How trust developed through confidentiality leads to more durable agreements
- Why agreements reached in a confidential environment are more likely to be upheld
Confidentiality is not just a technical aspect of mediation; it’s a cornerstone of trust, open communication, and successful resolutions.
In family and property matters, where emotions often run high, confidentiality provides the safe space necessary for participants to express their concerns.
Participants may explore solutions, and ultimately reach agreements that work for everyone involved.
Mediation’s commitment to confidentiality ensures that sensitive information stays within the mediation room. This allows participants to engage openly and honestly without fear of repercussions.
- It’s a vital aspect of the mediation process that contributes significantly to its effectiveness.
Whether you are navigating family dynamics or complex property issues, remember that confidentiality is there to protect your privacy.
It aims to foster trust, and pave the way for productive and lasting resolutions.