Confidentiality in the Model Law and the European Mediation Directive

A comparison of solutions offered in the Mediation Directive and the Model Law on Conciliation with examination of the actual situation in selected Civil and Common Law Countries

Thèse de Master , 2009 , 71 Pages , Note: 1,5

Droit - Procédure civile

Since international trade and commerce as well as cross-border transactions have grown rapidly the need for effective dispute resolution systems has significantly increased.
Alternative Dispute Resolution (ADR) like Mediation and Conciliation serve as an alternative procedures to litigation and can be characterised as dispute resolution based on the consent of the parties. Besides being more cost-effective procedures than litigation Mediation and conciliation offer the opportunity of a settlement truly agreed upon by the parties. To secure a situation where both parties are able and willing to speak frankly over the issues in dispute, confidentiality is a key feature of mediation.

This research paper evaluates how confidentiality in mediation is dealt with in different legal systems and whether improvements may be provided by implementation of the Directive on certain aspects of Mediation in Civil and Commercial Matters (hereafter “the Directive”) and the UNCITRAL Model Law on International Commercial Conciliation (2002) (hereafter “the Model Law”).

After an explanation of the relevant definitions of mediation and confidentiality, confidentiality rules established in typical Common - Law and Civil - Law systems are examined. Exploring the legal basis of confidentiality rules and their exceptions, special reference is made to existing gaps in the rules which cause problems in practice. Afterwards the aims, scope of application and the confidentiality provisions of the Directive as well as existing gaps and challenging matters concerning the Directive and its implementation into national law will be focused upon. Subsequently the Model Law will be considered concerning the same issues as the discussion on the Directive. A final comparison of the results will lead to suggestions as to how mediation rules should deal with confidentiality issues comprehensively.

Inhaltsverzeichnis (Table of Contents)

• Introduction.
• Mediation/ Conciliation.........
• Confidentiality..
• Confidentiality and Mediation Privilege in Civil-Law and Common-Law
• Common Law
• The "without prejudice rule”.
• England and Wales.......
• United States
• Australia.
• Criticism......
• Exceptions relating to disclosure of documents.....
• Exceptions concerning the validity of the settlement agreement
• (1) Investigation as to whether a settlement agreement was concluded....
• (2) Misrepresentation, fraud, threat, undue influence.
• (3) Estoppel
• (4) Perjury, blackmail or other “unambiguous impropriety” .……......
• Exceptions in multi-party disputes
• General Rule: Rush & Tompkins Ltd v Greater London Council........
• Reasonableness of mitigation: Muller v Linsley and Mortimer
• Distinct case relating to reasonableness of mitigation.….………………..\n
• Mediator privilege ....
• Parties to the mediation ......
• Conclusion.........
• Mediation privilege in Civil - Law systems.
• Austria …….………………..\n
• Germany..\n
• Switzerland...........
• France and Netherlands.\n
• Conclusion.........
• Mediation Directive 2008/52/EC
• Aims of the Directive
• Scope of Application.......
• cross-border mediation ......
• Civil and commercial matters
• Definition of Mediation.......
• Art. 7 Confidentiality of mediation
• Persons bound by art. 7 (1)............
• Civil commercial judicial proceedings and arbitration
• Scope of confidentiality
• Exceptions to confidentiality..\n
• Minimum Harmonisation in art. 7(2) ...........\n
• Options and problems for national legislation .\n
• Scope of application: What is mediation?.\n
• Right of Member State to enact broader provisions…......
• Scope of confidentiality
• Necessary changes in the Member States
• UNCITRAL Model Law on International Commercial Conciliation of 2002.....\n
• Scope of application ....\n
• "International”.\n
• "Commercial”.
• "Conciliation”.
• Confidentiality rules.\n
• Art. 8 \"Disclosure of information\".\n
• Definition of “information\".\n
• Disclosure of information……………………..\n
• Art. 9 “Confidentiality”.\n
• Art. 10 \"Admissibility of evidence in other proceedings”.\n
• Persons bound by art. 10 ............
• Kind of subsequent proceedings
• Scope of the Privilege
• Exceptions .......
• Criticism......
• Comparison
• Scope of application .......\n
• Mediation/Concilation ........\n
• "International”.\n
• Content of the provisions on confidentiality and mediation privilege
• Persons bound to confidentiality.\n
• Concluding comment

Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)

This research paper explores the concept of confidentiality in mediation, comparing solutions offered in the Mediation Directive and the Model Law on Conciliation. It examines the actual situation in selected Civil and Common Law countries. The paper aims to analyze the legal frameworks surrounding confidentiality in mediation and assess their effectiveness in protecting sensitive information shared during mediation proceedings.

• Confidentiality in mediation.
• Comparison of legal frameworks in Civil and Common Law countries.
• Examination of the Mediation Directive and the Model Law on Conciliation.
• Analysis of exceptions to confidentiality rules.
• Assessment of the effectiveness of confidentiality provisions in protecting sensitive information.

Zusammenfassung der Kapitel (Chapter Summaries)

The paper begins by introducing the concepts of mediation and confidentiality, providing a foundation for the subsequent analysis. Chapter 2 explores the concept of confidentiality and mediation privilege within Common Law jurisdictions, focusing on the "without prejudice rule" and its application in England and Wales, the United States, and Australia. The chapter also examines exceptions to the rule and its application in multi-party disputes.

Chapter 3 delves into the Mediation Directive 2008/52/EC, outlining its aims, scope of application, and specific provisions on confidentiality. The chapter analyzes the directive's exceptions to confidentiality and discusses its potential impact on national legislation. Chapter 4 examines the UNCITRAL Model Law on International Commercial Conciliation of 2002, focusing on its scope of application, confidentiality rules, and exceptions to the confidentiality privilege.

Chapter 5 provides a comparative analysis of the Mediation Directive and the Model Law on Conciliation, highlighting similarities and differences in their approaches to confidentiality. The chapter concludes with a summary of the key findings and recommendations for future development of legal frameworks surrounding confidentiality in mediation.

Schlüsselwörter (Keywords)

The research paper focuses on the following key concepts: confidentiality, mediation, conciliation, mediation privilege, without prejudice rule, Mediation Directive, Model Law on Conciliation, Civil Law, Common Law, cross-border mediation, international commercial conciliation, exceptions to confidentiality, legal framework, effectiveness.

• Université: Stellenbosch Universitiy (Departement of Mercantile Law)
• Cours: LL.M. International Trade Law
• Note: 1,5
• Auteur: Eva-Maria Henke (Auteur)
• Année de publication: 2009
• Pages: 71
• N° de catalogue: V174322
• ISBN (ebook): 9783640947577
• ISBN (Livre): 9783640947713
• Langue: anglais
• mots-clé: Mediationsrichtlinie, Model Law on Conciliation, Confidentiality, Vertraulichkeit, Mediation