Confidentiality of mediation encourages parties to speak freely and openly. This is because they do not need to fear (or much less fear; ex natura confidentiality protections are never ironclad) that their words could be used against them when revealed to an outsider to the mediation process, such as a judge in a court or a third party, including for example a market competitor.

Therefore, confidentiality is often perceived desirable, if not essential, for mediation to take place and to be successful. It is also expected that the confidentiality of mediation should be regulated and adequately protected by the law and other applicable norms. The editor of this blog, Nadja Alexander, included different dimensions of confidentiality (not only insider/outsider and insider/court, but also insider/insider) in the Regulatory Robustness Rating (RRR): The Guide to Mediation Regulatory Regimes. Having said that, both the possibility and the desirability of mediation confidentiality are from time to time questioned (see e.g. a thought-provoking piece of Charlie Irvine on this blog), or at least particular legal regulations pertaining thereto are criticized.

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