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28 Aug 2020 MEDIATION AND CONFIDENTIALITY

Recently, the Court of Discipline gave a lawyer a warning for breaching the duty of confidentiality from a mediation agreement concluded between the parties. This even though he was neither a party to the mediation nor had signed a confidentiality declaration.

The parties were consulting with a mediator about the modification of a parenting plan drawn up at the time of the divorce. The mediation agreement included the following confidentiality clause:

"All that is communicated, stated and introduced during the mediation by the parties and the mediator, and all documents made available to each other by the parties and the mediator - including the discussion reports and drafts prepared by the mediator - are, in whatever (derivative) form, confidential and shall be considered as entrusted by the parties to each other and to the mediator, respectively by the mediator to the parties. If the parties submit their disputes to the court, either in the event that the mediation did not lead to a result, or in the event that it did lead to (a partial) result, they shall not disclose in the relevant proceedings what was discussed in the mediation and shall not submit to the court any documents submitted during the mediation, unless they agree in writing to submit to the court what remains open."

The lawyer had filed a petition with the court on behalf of one of the parties seeking substitute permission to go abroad on holiday with the son. The petition stated that the parties were in mediation, that the summer holiday had been discussed and agreements had been made on when the son would stay with whom, that the other party then refused to sign the necessary consent forms for the trip and that mediation by the mediator was unsuccessful.

The lawyer was then accused by the other party of breaching the duty of confidentiality from the mediation agreement in the petition. The lawyer was aware of the mediation agreement.

The Court of Discipline ruled as follows:

The complaint relates to the actions and/or omissions of the other party's lawyer. The basic principle is that that lawyer is entitled to a large degree of freedom to represent his or her client's interests in a manner that he or she deems appropriate. This freedom may not be curtailed for the benefit of an opposing party, unless his or her interests are needlessly and impermissibly prejudiced.

It follows from established case law of the Court of Discipline that the obligation of confidentiality applicable between the parties under a mediation agreement would lose its value in an unacceptable manner if the lawyer would always be free to use his own discretion, based on his own view of what is in his client's interest and without informing the other party, to determine that in the proceedings use will be made of documents from the mediation (which should also be kept secret from the court) or to otherwise express his opinion on the alleged objective, content and/or outcome of the mediation. Only under special circumstances may this be different.

Therefore, the lawyer's defence that he was not a party to the mediation and did not sign a separate confidentiality agreement could not help him. Nor did the council follow the defence that he did not disclose any documents from the mediation or introduce them into proceedings. After all, the duty of confidentiality can be breached by making disclosures about the alleged purpose, content and/or outcome of the mediation. There was no evidence that there were special circumstances on the basis of which the lawyer was free to make disclosures about the mediation. The complaint was therefore well-founded.

Should you have any questions, please feel free to contact one of our lawyers. We will be happy to assist you!

SPEE advocaten & mediation Maastricht

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