I often say to colleagues that confidentiality in mediation is a bit of a myth. I don’t mean we should stop offering it. I mean that the way we usually describe it promises clients something we can’t actually deliver.
Here is the kind of situation I have in mind. A client makes a complaint about a mediator. The mediator had told the parties in a workplace conflict that the process was confidential. One of the parties after the mediation told people what was said in the room. The complaint will not come to much. The membership body will probably warn the mediator to be more moderate in future. There is still no remedy for the client whose disclosures are now circulating.
That gap, between what we promise and what a client can rely on, is what this post is about.
The promise we can’t keep
Most of us learned to tell parties that mediation is confidential, with a short list of exceptions for serious crime or risk of harm. It sounds clean and reassuring. It is also, in most of the settings I work in, close to unenforceable.
In a workplace, a family, or a neighbour dispute, there is usually no realistic remedy if someone breaks confidentiality. Suing is slow and expensive, and even if you win, you have to prove a specific loss. Most clients will never do this. So the promise sits there, sounding solid, resting on nothing more than the other party’s goodwill.
What the word is carrying
Part of the problem is that the single word is doing the work of several different questions. When we tell a client “this is confidential”, we are collapsing all of these into one:
- Who is bound. The mediator, each party, a support person, a lawyer, and the admin staff may all have different obligations, or none.
- What is protected. That the mediation happened, the documents, the specific things said, an admission, or the outcome.
- From whom. Everyone, or named people, or categories such as a therapist, a partner, or a manager.
- What makes it binding. A statute, a contract between the parties, professional ethics, an organisational policy, a personal undertaking, or plain goodwill.
- How absolute it is. A flat prohibition, permission with conditions, a matter of discretion, or no real protection at all.
- What happens if it is broken. A statutory sanction, damages, a professional complaint, workplace discipline, some reputational cost, or nothing.
Clients do not hear a list of variables. They hear one reassuring word, and they fill in the gaps in the direction of the strongest possible protection. The most comforting version of “confidential” is the least accurate one.
Where the concept came from
Much of our confidentiality language comes from commercial settlement work, where mediation was used to resolve disputes between businesses with lawyers in the room.
In that setting the word works, because there is commercially valuable information worth protecting, a contract, and parties with the resources to enforce it.
We then carried the same word into workplace, family, community and neighbour mediation. What is being protected is usually words said and feelings admitted, not a discrete asset. The parties are individuals, often without the means to litigate. The loss is relational or reputational and very hard to put a number on.
Our own standard shows how settled the assumption has become. AMDRAS defines mediation as “a confidential facilitative process” (clause 5). Confidentiality is written into the definition itself, rather than being something we decide on and adapt for the room in front of us.
When even a statute is not enough
My examples so far come from the weak end of the scale, where confidentiality fails because nobody can enforce it. A new case shows the strong end failing too. In Flip About Pty Ltd v Alamdo Holdings Pty Ltd [2026] NSWSC 431, the Supreme Court of NSW examined a 2020 rent relief mediation run by the NSW Small Business Commission. A statute protected that mediation, stating that statements made in the mediation were “not admissible in any legal proceedings”.
After the mediation failed the dispute continued, and the parties’ later letters referred to what had happened in it. The court held that this waived the statutory protection. An earlier appeal decision had already read the section as creating a privilege the parties hold, not an absolute bar, and a privilege can be lost through conduct.
So the court reconstructed the mediation. All five participants were cross-examined about what was said in the room. Notes taken at the mediation became evidence, and after five years they counted for more than anyone’s memory. The published judgment records who made offers and how upset one party was when it ended. Because the scheme required the parties to negotiate in good faith, the judge also assessed their conduct, and found that one position taken at the mediation was not in good faith.
Nobody in that room chose to give up confidentiality. They lost it by writing ordinary letters afterwards.
A better way to talk about it
None of this means confidentiality is worthless. It means we should describe it honestly and adapt it to the room. In workplace matters especially, I have moved away from a blanket assurance.
Rather than say “this is confidential”, I separate what I can control from what I can’t. I say that from my perspective it is confidential, that I will not talk to anyone else about it. Then I turn to the parties. Are there people you might need to talk to in your organisation. Is there someone on your team you report back to. Can we agree, before we finish, on what will be said outside this room, so there are no surprises later.
After Flip About, I would add one more honest sentence: if this dispute ends up in court, what happened here may not stay here, and what you write to each other later can affect that.
This also lets me frame confidentiality as something useful rather than a warning. Its value is that it creates enough safety for people to speak openly, particularly when someone wants to acknowledge their part in a conflict.
Under AMDRAS, mediators still carry their own confidentiality obligations, set out in the Code of Ethics (Appendix 3, paragraph 5.1) and the confidentiality protocols (Appendix 4). The point is not to promise less out of caution. It is to promise only what we can stand behind, and to hand the rest back to the parties as a genuine choice.
Some questions to sit with
- When you say “confidential” to a client, which of the variables above are you actually promising, and which are you leaving them to assume?
- In the settings you work in, what remedy would a client realistically have if the other party breached? If the honest answer is none, does your language reflect that?
- If your mediation sits under a statutory scheme, could you explain to a party, in one sentence, how that protection might be lost?
- How might you turn the confidentiality conversation into a discussion about purpose, rather than a blanket assurance?
Additional reading
- Flip About Pty Ltd v Alamdo Holdings Pty Ltd [2026] NSWSC 431.
- Bobette Wolski (2020) Confidentiality and privilege in mediation: concepts in need of better regulation and explanation. UNSW Law Journal 43(4) 1552 to 1594.
- Rachael Field and Neal Wood (2005) Marketing mediation ethically: the case of confidentiality. QUT Law Review 5(2) 143 to 159.