Following disclosures by David Bowles, former chair of the United Lincolnshire Hospital Trust, Jeremy Hunt, Health Secretary, has warned NHS bosses not to block ‘whistleblowing’; and the government is to investigate the effect and import on such disclosures of the Public Interest Disclosure Act 1998 (PIDA).
Is the Public Interest Disclosure Act too restrictive? Where there is a public interest need to protect those who disclose information that otherwise should be confidential, should it go further? To what extent is the public interest served by ‘gagging clauses’?
Some would see this as simply an employment law problem. Yet, daily, mediators in many disputes apply confidentiality clauses without necessarily addressing the ethical issues.
Background to confidentiality
Mediation was always ‘a voluntary, without prejudice process, conducted confidentially and managed by an independent, impartial neutral person’.
The Civil Procedure Rules 1998 encouraged the use of alternative dispute resolution in civil litigation, especially the use of mediation. In the early days Cowl & Ors v Plymouth City Council and Dunnett v Railtrack PLC, the Court of Appeal highlighted the importance of mediation as a ‘without prejudice’ method for people in dispute to settle their differences without outside intervention. It encouraged parties in dispute to use a process that was understood to be a confidential and without prejudice method of resolving conflict.
Mediation privilege developing?
Changes to the model, to mediation practice, and to the definition of mediation have occurred over recent years, especially with the increased use of conciliation, in which mediation is conducted by an appointed person against the back-drop of statutory regulation. There, confidentiality is partially excluded on the basis that this mediation process is underpinned by a positive public law duty to address and defeat discrimination, and that the conduct of the process should be open to scrutiny.
However, the cardinal principle of confidentiality still dominates private law disputes. Sir Henry Brooke said “the confidentiality axiom underlying mediation proceedings constitutes the single most important reason for parties to resort to mediation in the first place”. Only through a heightened awareness of the issue will we be prevented from “sleep walking into disaster” on this topic. Confidentiality in the mediation process is important and (regulation) should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration”.
In Venture Investment Placement Ltd v Hall, the court held that “Mediation proceedings do have to be guarded with great care. The whole point of mediation proceedings is that the parties can be frank and open with each other, and that what is revealed in the course of the mediation proceedings is not to be used for or against either party in litigation, if the mediation proceedings fail”.
In Cumbria Waste Management Ltd., Lakeland Waste Management Ltd v Baines Wilson (A Firm) Francs Kirkham J said “In my judgment, whether on the basis of the without prejudice rule or as an exception to the general rule that confidentiality is not a bar to disclosure, the court should support the mediation process by refusing, in normal circumstances, to order disclosure of documents and communications within a mediation”. Later he repeated “ In my judgment, the court should be very slow to order (such) disclosure. Mediators should be able to conduct mediations confident that, in normal circumstances, their papers could not be seen by the parties and others”.
So confidentiality remains a key historic concept in the definition of mediation: the mediation process is conducted without prejudice to any legal proceedings that may follow if unsuccessful; the parties can take a ‘generous’ stance and compromise during the mediation process; one party cannot use what is said in the process against the other in the absence of agreement; parties can divulge issues to an independent neutral mediator without that information being shared with anyone else, whether present or not.
Agreed in May 2008 and implemented in May 2011 between the majority of member states, the EU Mediation Directive was designed to regulate cross-border mediation. The directive was part of a developing process in civil and commercial disputes to move dispute resolution away from international and national litigation into local resolution methods.
The directive reflects the increasing requirement and dependence of those in the dispute resolution industry on the use of mediation. In fact national governments across the world are actively looking at introducing mediation as the ‘gate-keeper’ to courts and formal legal process. In some countries this is already the case. Before instigating any claim or remedy, parties must go through the mediation process.
Impact of the European Directive
Directive preamble (23) reads:
“Confidentiality in the mediation process is important and this Directive should therefore provide for a minimum degree of compatibility of civil procedural rules with regard to how to protect the confidentiality of mediation in any subsequent civil and commercial judicial proceedings or arbitration”.
Article 7 of the directive emphasises the importance of the confidentiality principle and the need to ensure its protection. Whilst the directive relates specifically to cross-border disputes, there is a body of opinion that would encourage national governments to adopt the directive into domestic law, creating a unified approach to mediation, whether domestic or international. Will similar or identical provisions develop elsewhere in the mediation field, and if so, how will they be applied to the English mediation process?
Do we have a position?
The debate on the issue of confidentiality in relation to mediation has been re-ignited by the issue of whistleblowing disclosures. How important is confidentiality in reality?
What is the impact of ‘sharing of information’ provisions which are increasingly being required in mediation service level agreements? Should we not be addressing this (and other issues in the wider debate) before we find that such confidentiality rules are made for us by default?
Should confidentiality remain a keystone to the mediation process? If confidentiality of the process were to be removed, what will be the short and long term effects on its viability and take-up? Would there be benefits from opening the mediation process to outside scrutiny?
There is concern about the development of mediation clauses within service level contracts for mediation – requiring the disclosure of the mediation process, behaviour by parties within the mediation process, and disclosure of detail of outcomes to third parties who have not been present and party to the mediation. This mirrors the concern relating to organisations that conduct mediations when their position is not, or may not be independent of the outcomes.
Whilst this development differs from the principle of disclosure in court or arbitral proceedings, it affects the underlying principle that the mediation process should free parties to attempt to sort out their dispute privately without any come-back should their attempts fail, and without the public, or public authorities scrutinising what concessions have been made.
Earlier this year, CEDR’s working party reported:
“We are convinced that confidentiality remains a cornerstone of mediation practice and needs to be observed, protected and delivered carefully so as to help parties open up to each other and to the mediator and indeed to enhance the possibility of settlement without in either case harming their case if settlement does not emerge and adjudication is later required by judge or arbitrator. The security which confidentiality generates is used to encourage greater openness and more disclosure by parties at the right stage and when they are ready”.
Clearly, there are public interest issues to be considered – not least the danger that organisations such as the NHS may use the confidentiality clause in mediation settlements to gag whistleblowers. But how far should this go? Is it possible, in succumbing to a ‘social need or desire to know’ that the underlying integrity of mediation as a voluntary, without prejudice, confidential and impartial process may be undermined so as to remove the real advantages that mediation has historically offered? Or, as Jeremy Hunt would have it, should the confidentiality clauses in mediation be lifted on the basis that they may at times work against the interest of the wider public to know what has gone on?
Confidentiality of mediation
1. Given that mediation is intended to take place in a manner which respects confidentiality, Member States shall ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial judicial proceedings or arbitration regarding information arising out of or in connection with a mediation process, except:
(a) where this is necessary for overriding considerations of public policy of the Member State concerned, in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person; or
(b) where disclosure of the content of the agreement resulting from mediation is necessary in order to implement or enforce that agreement.
2. Nothing in paragraph 1 shall preclude Member States from enacting stricter measures to protect the confidentiality of mediation.
 CPR 1.4(2)(e) and CPR 3.1(2)(m)
 14 December 2001: Court of Appeal
 22 February 2002: Court of Appeal Costs Judgment
 for example in relation to age, disability and discrimination cases
15 July 2008: former Lord Justice of Appeal and Vice-President of the Court of Appeal Civil Division: per “The Mediation Directive: What Will it Mean for Us?”: Gordon Blake (2008)74 Arbitration 4 @ p441
 save in exceptional circumstances where a failure to disclose may result in serious harm (PIDA)
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008
 see David Cornes “Mediation Privilege and the EU Mediation Directive: An Opportunity?” : (2008) 74 Arbitration 4 p.395