FREEDOM OF INFORMATION
Mediation services provided by government agencies may be subject to freedom of information legislation. This may allow the public to gain access to documents where the government agency is not exempt from freedom of information legislation. Thus, confidentiality within and subsequent to mediations conducted by government agencies may be limited.
CONCLUSION
Neutrality and impartiality may be identified as key elements in mediation. As each of these requirements is potentially subject to limitations within the mediation process, it is important that such limitations be recognised and addressed in order to ensure that the objective of fairness, underlying the mediation process is met.
Similarly, whilst the requirement of confidentiality is a hallmark of the fairness of the mediation process, both statute and common law limit confidentiality within and subsequent to mediation. Legislation may provide for partial or total non-adherence to confidentiality and impose a duty or justification for disclosure of confidential information. It may also provide exceptions to the inadmissibility of confidential information in court proceedings. Judicial interpretation of confidentiality legislation has restricted the broad nature of provisions so as not to restrict the jurisdiction of the court. Furthermore, while the common law protects information through the without prejudice privilege and the legal professional privilege, these privileges have broad limitations and do not protect communication in a large number of fact situations.
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