As a lawyer and registered MfN mediator, it is part of my daily practice to ensure that confidentiality is properly secured and respected in mediation proceedings. Unfortunately, there are still lawyers and parties who take a more relaxed approach to this duty of confidentiality, even though it is one of the fundamental pillars of mediation. A recent decision by the Dutch Raad van Discipline (Disciplinary Council for the Legal Profession) reaffirms just how strictly this duty must be observed, including by lawyers who were not involved in the mediation process themselves. In this case, a lawyer received a warning in disciplinary proceedings for disclosing information from a previous mediation between his client and her ex-partner.<\/p>\n
The case<\/strong><\/p>\n The complainant and his ex-partner had attempted to resolve their dispute through mediation. As part of that process, they signed a mediation agreement, which included a confidentiality clause. Nevertheless, when the matter escalated into court proceedings concerning contact and maintenance, the lawyer acting for the ex-partner \u2013 who had not been involved in the mediation \u2013 submitted a statement of defence on her behalf. This was accompanied by exhibits containing, among other things, remarks made by the client about the mediation.<\/p>\n Although the lawyer withdrew these documents immediately after the complainant\u2019s lawyer raised objections, the complainant argued that the damage had already been done: the court may already have had sight of the documents and thereby gained knowledge of what had been said or written during the mediation process.<\/p>\n Confidentiality also applies to lawyers<\/strong><\/p>\n The Disciplinary Council upheld the complaint and referred to established case law from the Hof van Discipline (Court of Discipline), which clearly states that the confidentiality obligation arising from a mediation agreement also extends to lawyers, even where they were not directly involved in the mediation and did not sign a separate confidentiality undertaking.<\/p>\n The disciplinary panel found that allowing a lawyer to unilaterally decide \u2013 without consulting the other party \u2013 to use material from the mediation in proceedings would \u201cundermine the value of confidentiality in an unacceptable manner\u201d.<\/p>\n Importantly, the duty of confidentiality is not limited to proposals or draft agreements made during the mediation. It encompasses everything said or shared \u2013 orally or in writing \u2013 as well as the course of the mediation process itself, the emotions expressed, the mutual accusations, and the conduct of the parties. Exceptions to this rule are only permitted under special circumstances, which were not present in this case.<\/p>\n