During mediation, everything that is discussed is confidential. A win-win situation for the parties can best be achieved if all possible outcomes are thought through creatively, without what you say being used against you.
One of the subjects of the mediation agreement is confidentiality for all parties. The participants and the mediator undertake to maintain confidentiality, so that the full scope of negotiation can be explored. As long as the mediation agreement is not signed, the mediation cannot be started. But what does a participant actually sign for?
Secrecy in the agreement
Freedom of contract applies to the mediation agreement and the content of the secrecy clause may therefore differ. The starting point of mediation is that everything discussed during a mediation session remains a secret of the participants. An exception to the secrecy rule can be agreed upon during mediation.
Article 7.2 of the MfN mediation rules states in summary that the parties undertake not to disclose any documents to third parties. Participants would do well to define what they mean by documents by stating, for example, that reports, e-mails and letters shared within the mediation are secret and cannot serve as evidence unless this has been agreed.
Secret final product of the mediation?
It may be important for a participant to share the final product with others. Article 10 of the MfN mediation rules states that participants must jointly determine in writing the extent to which the contents of the agreement to be concluded remain secret. Article 10.3 even stipulates that the contents of the agreement entered into may be submitted to the court "if that is necessary in order to claim compliance.
If the final product is a settlement agreement, this agreement is in principle not secret, but not every agreement is a settlement agreement within the meaning of Article 7:900 of the Dutch Civil Code. That article states that a settlement agreement is an agreement to end a legal dispute, whereas a final product may also contain agreements that are not legal in nature.
Secrecy at Bolder
At our office, the final product of the mediation is not secret unless the participants agree otherwise. In family law, a separation agreement and a parenting plan are often also submitted with the (joint) petition for divorce or dissolution of the registered partnership, which means that the agreement is no longer secret. If, as a participant in a mediation process, you would like to know what confidentiality means for you, please discuss this with the other participant(s) and the mediator and make clear agreements.
Want to know more about how we mediate? Then contact Rebecca Weisz-Hertsworm and Fabrizia de Wit-Facchetti.
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