Contract as a Basis for Mediation Confidentiality

• Published date: 22 October 2021
• Date: 22 October 2021
• Pages: 112-136
• DOI: https://doi.org/10.47348/SAMLJ/v33/i1a5
• Author: Laubscher, M.
• Citation: (2021) 33 SA Merc LJ 112

112

https://doi.org/10.47348/SAMLJ/v33/i1a5

CONTRACT AS A BASIS FOR MEDIATION

CONFIDENTIALITY

MICHAEL LAUBSCHER*

Lecturer, North-West University

Abst rac t

Condentiality is seen as one of the pillars of mediation. Parties to

mediation rely on this essential aspect of mediation in order to protect

themselves against the subsequent use of condential information which

has been divulged during mediation and outside the mediation process.

e mediation agreement is seen as one of the basic legal foundations for

the application of mediation condentiality as it constitutes a contract

between the parties, and it also contains a condentiality clause. is

article deals with contract as a basis for mediation condentiality. It

considers the nature of mediation as well as the parties involved in

mediation. It further discusses some of the principles of contract law

and the interpretation of contract law in South Africa in the light of the

mediation agreement.

Keywords: condentiality, mediation, contract, mediation agreement,

disclosable

I INTRODUCTION

Parties to mediation are informed that the mediation process is con-

dential. is implies that the information and communication that will

be shared by the parties to the mediation (the disputants and the media-

tor) will be protected from disclosure at a later stage.

Salmon1 regards condentiality as one of the cornerstones of the

mediation process, while others call it a ‘holy untouchable tenet’.2 Tvauri

views condentiality as essential to successful mediation and empha-

sises the fact that solidied condentiality assists in establishing coop-

erative relationships between the parties and the mediator.3

e parties oen conrm their willingness to mediate the matter

by signing the mediation agreement and it may be argued that this

* LLB (Unisa) LLM (NWU). is article is based in part on sections of the author’s LLM

dissertation, entitled Condentiality in Mediation: A Legal Analysis (unpublished LLM dis-

sertation, North-West University, 2018).

1 Salmon, ‘Why choose mediation?’ (1996) New Zealand Law Journal 7 at 7–8.

2 Charlton, Dispute Resolution Guidebook (LBC Information Services 2000) 15.

3 Tvauri, ‘Standard of binding by condentiality principle in mediation process’ (2015)

1(1) Alternative Dispute Resolution Yearbook.

(2021) 33 SA Merc LJ 112

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https://doi.org/10.47348/SAMLJ/v33/i1a5

CONTRACT AS A BASIS FOR MEDIATION CONFIDENTIALITY

113

agreement should be the basis for the parties’ reliance on condenti-

al it y.4 Almost all mediation agreements contain a condentiality clause.

It is therefore submitted that the law of contract and the contractual

principles should apply when interpreting the condentiality clause

contained in mediation agreements.5

is article will discuss contract as the basis for relying on media-

tion condentiality. In doing that, it is important to start by discussing

the nature of the concept of mediation from a legal perspective. e

underlying principles and terms of the contract must also be analysed in

order to determine whether or not a mediation agreement is the same as

any other contract. In considering the application of the law of contract

when interpreting condentiality clauses, it should also be determined

whether that application suits the interpretation and application of a

sui generis mediation agreement and whether such mediation agree-

ment provides sucient protection to ensure mediation condentiality.

e article will also discuss some of the principles of contract law and

how they should be applied when it comes to mediation condentiality.

Section 39(1)(b) and (c) of the Constitution of the Republic of South

Africa, 1996 provides that international law must be considered when

interpreting the Bill of Rights, and that foreign law may be considered

when interpreting the Bill of Rights.6 is oers a clear opportunity to

compare and incorporate considerations, principles, and applications of

international and foreign law when interpreting and developing the law.

Countries such as the USA established mediation-specic legislation

decades ago, with the Uniform Mediation Act of 2003 being the most

profound example. In South Africa, currently no such legislation deals

specically with mediation in a comprehensive manner. Similarly, there

is no case law on condentiality in mediation, while on the other hand

there is a myriad of case law on mediation and mediation condentiality

in the USA.7

4 Even if there is no written agreement, the fact that the parties meet for mediation

tacitly implies that they are willing to mediate the matter.

5 is implies that all parties, including the mediator, should agree to honour the fact that

information which is disclosed during mediation should be seen as being condential. See

Feehily, ‘Condentiality in commercial mediation: A ne balance (part 1)’ (2015) 3 JSAL 516

and Law Society of New South Wales, New South Wales Law Society Mediation and Evaluation

Information Kit available at https://www.lawsociety.com.au/cs/groups/public/documents/

internetcontent/ 026501.pdf, accessed on 5 October 2017.

6 Section 39 of the Constitution of the Republic of South Africa, 1996.

7 Cassel v Superior Court (2011) 51 Cal. 4th 113; Wimsatt v Superior Court 152 Cal App 4th

137, 164 (2007); Rojas v Superior Court of Los Angeles County 93 P 3d 260, 265 (Cal 2004);

Foxgate Homeowners’ Association Inc v Bramalea California Inc 25 P 3d 1117 (Cal 2001) are

some of the prime US case law examples of cases dealing with mediation condentiality.

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