1). Why do mediators care about the scope of confidentiality and privilege?  

Why do we think these issues matter? 

Mediators care passionately about mediation. It is still in many ways more a movement than a profession. If mediators think that the law on disclosure is now such that the public will be deterred from mediating or that the threat of disclosure will chill discussions at mediations they should and they will react strongly. There can be no doubt that parties care passionately about access to information and privacy at mediations. I recently spent much of a mediation day travelling up and down in a lift with a party who thought that the room allocated to him  might be bugged and would speak to me nowhere else.  

But  mediators  also need to be careful  to pick the right battles. If mediation is to seek special treatment we need to be very clear about why we deserve it and how it would help us. Commercial men might after all prove surprisingly amenable to the idea that the law will always set some limits to the operation of confidentiality. 

At the micro level there is a concern that mediators may be misleading the parties when they tell them at the start of the day, as they invariably do, that the proceedings will be strictly confidential. Should mediators now be giving a carefully  qualified statement mentioning various situations in which the negotiations will be able to be scrutinised in court? That will not make for  a snappy or  upbeat start to the mediation day.  

Again at the practical level the dread question of “notes” arises:  to keep them or not to keep them?  Some mediators deliberately destroy their notes as a protection against subsequent disclosure.[5] But if there are legitimate circumstances in which we may be called upon to give evidence should we not be in a position to help the court with a reasonably clear note, even where we are not strictly compellable as witnesses? A fortiori should we not be keeping notes if we are in some situations liable to be served with a valid witness summons? 

Finally busy mediators all dread the thought of being dragged into satellite litigation as a witness or as a party to a disclosure application. Colleagues from jurisdictions where mediation is better established testify to the waste of time this threatens. I can tell you that it is an uncomfortable sensation to be standing in the Master’s corridor preparing to represent a fellow mediator  on a disclosure application even if you are doing so at the court’s invitation.  It gets even less comfortable when the applicant  applies for costs against your client! So mediators have every right to care. But should they be worried?  Should they answer the reformers’ rallying cry?