In mediation, confidentiality is one of the core principles. However, mediators and parties involved in mediation do not have a legal duty of confidentiality. For this reason, a confidentiality clause is often included as standard in a mediation agreement that parties and the mediator conclude at the start of the mediation. Examples of confidentiality provisions can be found in the models of the Association of Family Law Attorneys and Divorce Mediators (vFAS) and the Netherlands Mediation Institute (NMI). The confidentiality provisions in mediation agreements can differ from each other.
The idea behind the confidentiality clause is that parties will speak more freely if they can be assured that the information they provide will not be used against them in any proceedings that follow – or are continued – if the mediation fails. This would significantly increase the chance of mediation succeeding. The question arises whether parties to a mediation agreement may or can oblige each other to withhold relevant information from the judge. Is this not contrary to the search for the truth, which is a fundamental principle of legislation and case law?
This question has been addressed several times in case law. For example, in 2009 the Supreme Court ruled that, in light of the social intercourse involved in the fact-finding by the civil court, it should not be assumed too quickly that the parties have concluded an evidence agreement in which they have excluded a means of evidence. The question of whether in that case a mediator, invoking the contractual duty of confidentiality, was allowed to refuse to make a witness statement, was answered negatively by the Supreme Court (Supreme Court 10 April 2009, NJ 2010/471). Since then, the appeal to a confidentiality provision in a mediation agreement has sometimes been honored by the lower court and sometimes not.
A recent, striking ruling was made by the Court of The Hague on 17 May 2017, which ruled that a confidential mediation report could be submitted in the interest of establishing the truth (Court of The Hague 17 May 2017, ECLI:NL:GHDHA:2017:1718). What were the facts and circumstances here? The parties' marriage had been dissolved in 2014. The parties had, through mediation, recorded the consequences of their divorce in an agreement and a parenting plan. In 2016, the court of first instance had set child support at €75 per child per month. The woman appealed against this, stating that the parties' income in 2012 had been wrongly used to determine the children's needs, since the parties had actually separated in that year. In this regard, the woman referred to the mediation report. According to the woman, this report showed that the parties had deliberately deviated from the statutory standards in this regard, on the basis of which it had to be accepted that not the income for the year 2012 had to be used, but the income for the years 2009 to 2011. The man put up a defence. He argued that the court should disregard the woman's grievances because they were based on the mediation report that the woman had submitted in violation of due process, thereby violating the duty of confidentiality. The court ultimately considered that the woman was obliged to submit the relevant mediation report in the interest of finding the truth. After all, given the man's dispute, the woman had no other way of demonstrating that the parties had deliberately deviated from the statutory standards by not using the family income in 2012 when determining the needs of the minors, but by taking an average for the years 2009 to 2011:
“The woman's interest is so important that compliance with the confidentiality obligation that normally applies cannot be required. In addition, in this case an agreement was reached after the mediation and this is a subsequent procedure.”
The court therefore took note of the contents of the mediation report. The fact that the Dean had declared the complaint of the man's lawyer against the woman regarding the breach of confidentiality well-founded did not alter this, according to the court.
In short, a judge will have to assess on a case-by-case basis whether the confidentiality of the mediation procedure should outweigh the search for the truth. Given recent case law, the confidentiality of the mediation procedure cannot be guaranteed under all circumstances.
Do you have any questions about mediation or otherwise? Please contact one of our lawyers. The lawyers of De Boorder can advise and assist you, if necessary also in proceedings.