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Lookup NU author(s): Professor Bryan Clark
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).
This article analyses the practical importance of confidentiality and privilege in mediation with particular emphasis on issues of disclosure of what occurred in a mediation and compellability of mediators in any subsequent litigation. The piece focuses on the gap between the theory behind confidentiality in mediation – i.e. that it is largely assured in the process – and the reality in which the privacy of mediation, protected by and large by the general without prejudice rules, may be rendered far more porous in practice. The article suggests that mediation would benefit from the statutory development of rules pertaining to confidentiality that undergird the process itself and in this sense analyses two extant provisions that already apply in the UK in relation to cross border mediations, and family mediation in Scotland respectively which could provide a model for more general reform
Author(s): Agapiou A, Clark B
Publication type: Article
Publication status: Published
Journal: Civil Justice Quarterly
Year: 2018
Volume: 37
Issue: 1
Pages: 74-97
Print publication date: 01/01/2018
Acceptance date: 17/05/2017
Date deposited: 08/04/2019
ISSN (print): 0261-9261
Publisher: Sweet and Maxwell