Editing Mediation (section)

==Philosophy==

===Conflict prevention===
Mediation can anticipate difficulties between parties before conflict emerges. Complaint handling and management is a conflict prevention mechanism designed to handle a complaint effectively at first contact, minimising the possibility of a dispute. One term for this role is "dispute preventer".<ref>{{harvnb|Charlton|2000|p=4}}</ref>

===Confidentiality===
One of the hallmarks of mediation is that the process is strictly confidential. Two competing principles affect confidentiality. One principle encourages confidentiality to encourage people to participate, while the second principle states that all related facts should be available to courts.

The mediator must inform the parties of their responsibility for confidentiality.

Steps put in place during mediation to help ensure this privacy include:

# All sessions take place behind closed doors.
# Outsiders can observe proceedings only with both parties' consent.
# The meeting is not recorded.
# Publicity is prohibited.

Confidentiality is a powerful and attractive feature of mediation.<ref>{{harvnb|Van Gramberg|2006|p=38}}</ref>{{Full citation needed|date=October 2015}}<ref>{{Cite web |title=Mediation: Frequently Asked Questions |url=https://www.wipo.int/amc/en/mediation/guide/index.html |access-date=2024-03-30 |website=www.wipo.int |language=en}}</ref><ref>{{Cite journal |title=Confidentiality of the Mediation Process and Ethical Dilemmas |url=https://www.researchgate.net/publication/374924613 |website=ResearchGate.net}}</ref> It lowers the risk to participants of disclosing information and emotions and encourages realism by eliminating the benefits of posturing. In general, information discussed in mediation cannot be used as evidence in the event that the matter proceeds to court, in accord with the mediation agreement and common law.<ref>{{harvnb|Spencer| Altobelli|2005|p=261}}</ref>

Few mediations succeed unless the parties can communicate fully and openly without fear of compromising a potential court case. The promise of confidentiality mitigates such concerns.<ref>{{harvnb|Charlton|Dewdney|2004|p=344}}</ref> Organisations often see confidentiality as a reason to use mediation in lieu of litigation, particularly in sensitive areas. This contrasts with the public nature of courts and other tribunals. However mediation need not be private and confidential.<ref name=boul539>{{harvnb|Boulle|2005|p=539}}</ref> In some circumstances the parties agree to open the mediation in part or whole. Laws may limit confidentiality. For example, mediators must disclose allegations of physical or other abuse to authorities. The more parties in a mediation, the less likely that perfect confidentiality will be maintained. Some parties may even be required to give an account of the mediation to outside constituents or authorities.<ref name=boul539/>

Most countries respect mediator confidentiality.

====Without-prejudice privilege====
The without-prejudice privilege in common law denotes that in honest attempts to reach settlement, any offers or admissions cannot be used in court when the subject matter is the same. This applies to the mediation process. The rule comes with exceptions.

The without-prejudice privilege does not apply if it was excluded by either party or if the privilege was waived in proceedings. Although mediation is private and confidential, the disclosure of privileged information in the presence of a mediator does not represent a waiver of the privilege.<!--contradiction?-->

===Legal implications===
Parties who enter into mediation do not forfeit legal rights or remedies. If mediation does not result in settlement, each side can continue to enforce their rights through appropriate court or tribunal procedures. However, if mediation produces a settlement, legal rights and obligations are affected in differing degrees. In some situations, the parties may accept a memorandum or moral force agreement; these are often found in community mediations. In other instances, a more comprehensive deed of agreement, when registered with a court, is legally binding. It is advisable to have a lawyer draft or provide legal advice about the proposed terms.<ref>{{harvnb|Charlton|Dewdney|2004|p=126}}</ref>

"Court systems are eager to introduce mandatory mediation as a means to meet their needs to reduce case loads and adversarial litigation, and participants who understand the empowerment of mediation to self-determine their own agreements are equally as eager to embrace mediation as an alternative to costly and potentially harmful litigation."<ref>{{harvnb|Spencer|Altobelli|2005|p=223}}</ref>