Mediation ethics

The general rule provides that the Mediator cannot tell one disputant what another disputant has said in private session given the obligations of confidentiality imposed upon the Mediator. However, if one disputant grants specific authority to the Mediator to disclose what is said in a caucus session to the other disputant then the Mediator may in accordance with that authorisation disclose the specific information so authorised to the other disputant.  The purpose of a caucus session is to permit an open exchange of information between the disputant and the Mediator without the other disputant being aware of the information being exchanged.  In order to ensure that the disputant can speak freely in the caucus sessions it is imperative that he speaks in the full knowledge that the Mediator will not disclose any of the information provided in the caucus sessions to the other disputant without first obtaining specific authorisation from the disputant at the caucus session.  The caucus sessions enable rapid progress to be made through the exchange of information with the Mediator.  The session allows the disputant to consider and formulate potential offers to the other disputant without any concern that the other disputant may be aware of the background information and the relevant criteria upon which the offer has been formulated.  The process enables the Mediator to understand the terms of the offer and to formulate it in such a way that it can be conveyed to the other disputant in a way required by the disputant before the Mediator.  The process enables Mediators to transmit offers between the parties in separate meetings and enables the Mediator to ensure that offers are packaged and presented in an appropriate format.

There are types of communication which mediators will be wary of communicating between the parties even with their authority owing to the potential implications.  These communications can include threats and “final offers or demands”.  Clearly, such information can signal the rejection of the mediation process by one of the disputants an yet new information gathered during subsequent stages of the mediation process could fundamentally modify the direction of the negotiations in any event.