Since international trade and commerce as well as cross-border transactions have grown rapidly the need for effective dispute resolution systems has significantly increased.
Alternative Dispute Resolution (ADR) like Mediation and Conciliation serve as an alternative procedures to litigation and can be characterised as dispute resolution based on the consent of the parties. Besides being more cost-effective procedures than litigation Mediation and conciliation offer the opportunity of a settlement truly agreed upon by the parties. To secure a situation where both parties are able and willing to speak frankly over the issues in dispute, confidentiality is a key feature of mediation.
This research paper evaluates how confidentiality in mediation is dealt with in different legal systems and whether improvements may be provided by implementation of the Directive on certain aspects of Mediation in Civil and Commercial Matters (hereafter “the Directive”) and the UNCITRAL Model Law on International Commercial Conciliation (2002) (hereafter “the Model Law”).
After an explanation of the relevant definitions of mediation and confidentiality, confidentiality rules established in typical Common - Law and Civil - Law systems are examined. Exploring the legal basis of confidentiality rules and their exceptions, special reference is made to existing gaps in the rules which cause problems in practice. Afterwards the aims, scope of application and the confidentiality provisions of the Directive as well as existing gaps and challenging matters concerning the Directive and its implementation into national law will be focused upon. Subsequently the Model Law will be considered concerning the same issues as the discussion on the Directive. A final comparison of the results will lead to suggestions as to how mediation rules should deal with confidentiality issues comprehensively.
Inhaltsverzeichnis (Table of Contents)
- Introduction.
- Mediation/ Conciliation
- Confidentiality
- Confidentiality and Mediation Privilege in Civil-Law and Common-Law
- Common Law
- The "without prejudice rule".
- England and Wales
- United States
- Australia
- Criticism
- Exceptions relating to disclosure of documents
- Exceptions concerning the validity of the settlement agreement
- (1) Investigation as to whether a settlement agreement was concluded
- (2) Misrepresentation, fraud, threat, undue influence
- (3) Estoppel
- (4) Perjury, blackmail or other “unambiguous impropriety”
- Exceptions in multi-party disputes
- General Rule: Rush & Tompkins Ltd v Greater London Council
- Reasonableness of mitigation: Muller v Linsley and Mortimer
- Distinct case relating to reasonableness of mitigation
- Mediator privilege
- Parties to the mediation
- Conclusion
- Mediation privilege in Civil - Law systems.
- Austria
- Germany
- Switzerland
- France and Netherlands
- Conclusion
- Mediation Directive 2008/52/EC
- Aims of the Directive
- Scope of Application
- cross-border mediation
- Civil and commercial matters
- Definition of Mediation
- Art. 7 Confidentiality of mediation
- Persons bound by art. 7 (1)
- Civil commercial judicial proceedings and arbitration
- Scope of confidentiality
- Exceptions to confidentiality
- Minimum Harmonisation in art. 7(2)
- Options and problems for national legislation
- Scope of application: What is mediation?
- Right of Member State to enact broader provisions
- Scope of confidentiality
- Necessary changes in the Member States
- UNCITRAL Model Law on International Commercial Conciliation of 2002
- Scope of application
- "International"
- "Commercial"
- "Conciliation"
- Confidentiality rules.
- Art. 8 "Disclosure of information"
- Definition of “information”
- Disclosure of information
- Art. 9 “Confidentiality”
- Art. 10 "Admissibility of evidence in other proceedings"
- Persons bound by art. 10
- Kind of subsequent proceedings
- Scope of the Privilege
- Exceptions
- Criticism
- Comparison
- Scope of application
- Mediation/Concilation
- "International"
- Content of the provisions on confidentiality and mediation privilege
- Persons bound to confidentiality
- Concluding comment
- Summary
- Confidentiality in mediation
- Comparison of legal frameworks in Civil and Common Law countries
- Analysis of the Mediation Directive and Model Law on Conciliation
- Examination of exceptions to confidentiality
- Practical implications of confidentiality in mediation
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
The research paper aims to compare the solutions offered in the Mediation Directive and the Model Law on Conciliation regarding confidentiality in mediation, with an examination of the actual situation in selected Civil and Common Law countries. This study delves into the practical application and legal frameworks surrounding confidentiality in mediation, drawing comparisons between different legal systems and international instruments.
Zusammenfassung der Kapitel (Chapter Summaries)
The introductory chapter defines mediation and confidentiality, setting the stage for the subsequent analysis. Chapter 2 explores the "without prejudice rule" in common law jurisdictions, including England and Wales, the United States, and Australia. It further examines exceptions to confidentiality and the concept of mediator privilege. Chapter 3 delves into the Mediation Directive 2008/52/EC, focusing on its aims, scope of application, and confidentiality provisions. It also discusses the implications of the directive for national legislation. Chapter 4 analyzes the UNCITRAL Model Law on International Commercial Conciliation of 2002, examining its scope of application, confidentiality rules, and exceptions. Finally, Chapter 5 compares the approaches to confidentiality presented in the Mediation Directive and Model Law on Conciliation, highlighting key similarities and differences. The concluding chapter (not included in this preview) provides a summary of the findings and recommendations.
Schlüsselwörter (Keywords)
This research paper focuses on the key concepts of confidentiality, mediation, conciliation, civil law, common law, mediation privilege, the Mediation Directive 2008/52/EC, the UNCITRAL Model Law on International Commercial Conciliation of 2002, cross-border mediation, and international commercial conciliation. The study examines the legal frameworks and practical realities surrounding confidentiality in mediation, comparing different jurisdictions and highlighting key challenges and opportunities in this area.
- Quote paper
- Eva-Maria Henke (Author), 2009, Confidentiality in the Model Law and the European Mediation Directive, Munich, GRIN Verlag, https://www.grin.com/document/174322
