Publication Type

Journal Article

Version

publishedVersion

Publication Date

8-2019

Abstract

Confidentiality is a foundational characteristic of the mediation process, a key feature that distinguishes mediation from litigation. However, the veil of confidentiality has been lifted for several purposes, including the courts’ assessment of the parties’ conduct so as to ensure good faith participation in the mediation. This article discusses how the mediation confidentiality and good faith participation may be concurrently promoted. It reviews the current approaches to upholding the general confidentiality and inadmissibility of mediation communications, and proposes ways to ensure that the veil of mediation confidentiality is pierced in highly circumscribed circumstances. It then examines the issue of whether to mandate good faith participation in mediation. This author proposes the articulation of a good faith obligation in order to send the correct signal about the expected conduct within mediation. However, the author also suggests that sanctions be imposed only for breaches of objective requirements, and the presence of highly egregious conduct within mediation. Otherwise, the veil of confidentiality would be readily lifted, to the overall detriment of the mediation process.

Keywords

mediation confidentiality, without prejudice, good faith, Mediation Act

Discipline

Dispute Resolution and Arbitration

Research Areas

Asian and Comparative Legal Systems

Publication

Singapore Academy of Law Journal

Volume

31

First Page

709

Last Page

741

ISSN

0218-2009

Publisher

Singapore Academy of Law

City or Country

Singapore

Embargo Period

5-3-2021

Additional URL

https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/Current-Issue

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