Mediation and confidentiality, what about that again?

In August 2020, we already wrote an article about mediation and confidentiality. The article in question was based on a disciplinary decision by the Raad van Discipline (Disciplinary Council), in which a lawyer was given a warning for breaching the obligation of confidentiality under a mediation agreement concluded between the parties.

If parties decide to enter into a mediation process, this is done on the basis of voluntariness and confidentiality. These are two core (pre)values. What if one of the parties - in this case employer and employee - in a (dissolution) procedure wants to inform the court about the content of this process? A recent judgment by the District Court of Amsterdam (judgment) confirms that confidentiality may only be breached in very exceptional (emergency) situations.

It may happen that one of the parties would like to share the contents of the mediation process with the court, for example in the context of dissolution proceedings, which follow a (failed) mediation. In the present case, however, the court ruled that an employee is and remains bound by the confidentiality clause in the mediation agreement. In this case, the employee wanted the court to be correctly and fully informed about the actions of her employer and therefore considered it necessary to share information obtained in the mediation process.

However, the court upheld the secrecy obligation on the grounds that job loss (the employee's argument for breaking the secrecy) cannot justify exemption from this obligation. After all, participants in a mediation process must feel free to show the back of their tongues during the process, without this being used against them later. The agreed confidentiality weighs more heavily.

The judgment of the Court of Amsterdam confirms that the confidentiality clause is a precondition of mediation and a key clause in the mediation agreement. The Court also ruled that there must be exceptional circumstances in order for a participant in mediation to be released from his secrecy obligation. The chance of losing the job is not sufficient for exemption from the agreed confidentiality. An emergency situation, however, may justify exemption.

Do you have any questions about this article or about mediation? Please contact our MfN registered mediator Monique Spee.

SPEE advocaten & mediation Maastricht