Confidentiality in Family Mediation

Confidentiality is a pivotal facet for the success of the mediation process.

Intake/Assessment (pre-mediation)

When parties approach us for mediation, it is a requirement that we assess the matter for suitability to mediate first. This is done by setting up a meeting with each party individually to get information from each party regarding the matters that they wish to discuss and the history of their relationship. Each intake/assessment session is confidential and we cannot share with one party what is discussed with the other.

Some mediators seek for consent to share agenda items only between the parties. The keyword here, being consent.

In-between Sessions

Between sessions parties sometimes call and e-mail regarding their mediation matter. All conversations with the mediator between sessions are confidential as well. We do not pass on messages between clients in-between sessions as this can be problematic and has the effect of diminishing neutrality and getting into conversations that cannot be sufficiently dealt with outside of the mediation session. Instead, all communication between parties outside of the mediation session should be done between the parties when safe to do so. This encourages the clients to start on their individual conflict resolution journey. Mediators are there to equip and role model and not to enable reliance on a third person to help the parties to resolve conflict all the time. Ideally, once the mediation process is completed parties will have the tools and be able to resolve any matters that come up between themselves moving into the future. However, we acknowledge that this not always possible.

During the Mediation Sessions

Private times with each party during the mediation sessions are confidential. The mediator or either party can call for private time during the joint mediation session. When private time is called for, each party speaks to the mediator privately. Parties are asked to share any parts of their private discussions with the mediator when all parties resume the mediation session. An important point to add is that if you are feeling overwhelmed during the mediation process and need time alone, what you might ask for is a break. What that means is that the session is paused for all parties and the mediator, for a few minutes where you can take a breather and the session resumes thereafter. This is different to private time.

The procedure in a shuttle mediation is the exact opposite of the usual (joint mediation) process. Shuttle mediation means clients are in separate rooms and the mediator goes from room to room, assisting parties to work through their matters albeit, not face to face. In this case, everything that parties say to the mediator during the shuttle session will be shared with the other party unless they specifically say not to do so. The mediator will not throw you in the deep end, they will have a discussion with you at the commencement of the session explaining the difference between this process and joint mediation.

Exceptions to Confidentiality

Exceptions to confidentiality exist where there is a disclosure that suggests there is a threat of imminent harm to a person. This might include a party to the mediation process or the party’s child. Confidentiality goes as far as the law permits under s10H FAMILY LAW ACT 1975.

Admissibility of discussions during the mediation process

Evidence of admissions made to a mediator or a professional referred to by the mediator during the course of the mediation process is not admissible in court. Mediators(FDRPs) have to inform the professional they are referring to of the operation of s10J FAMILY LAW ACT 1975.

Exceptions to admissibility are when there is the disclosure of abuse of a child or imminent threat of abuse to a child, where such disclosures cannot be reasonably obtained from other forums or sources.

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