e. Confidentiality and use of mediation communications

e. Confidentiality and use of mediation communications

Confidentiality is one of the central features of mediation. Sections 8, 9 and 10 of the Mediation Ordinance (Cap. 620) provide the main statutory protection for mediation communications. 

As a general rule, mediation communications must not be disclosed under section 8(1). The term “mediation communications” is broadly defined to include the following for the purpose of or in the course of mediation: 

1. anything said or done; 
2. any document prepared; or 
3. any information provided.  

Crucially, this definition excludes the agreement to mediate and the mediated settlement agreement itself, as these are typically considered contractual documents that may need to be produced to prove their own terms. 

This protection allows parties to negotiate more openly and to explore possible settlement options without fear that their words or proposals will automatically become evidence in later proceedings. 

However, this protection is not absolute. Section 8(2) permits disclosure without leave of the court in seven specific circumstances: 

1. When consent is obtained from each party, the mediator, and (if applicable) the third-party source of the communication. 
2. When the information is already lawfully in the public domain. 
3. When the communication contains information that is otherwise subject to discovery in civil proceedings. 
4. When necessary to prevent or minimize injury to a person or serious harm to the well-being of a child. 
5. When disclosure is for research, evaluation, or educational purposes, provided no participant’s identity is revealed. 
6. For the purpose of seeking legal advice. 
7. When made in accordance with a requirement imposed by law. 

Under section 8(3), where a party wishes to disclose mediation communications to a third party, for example to enforce or challenge a mediated settlement agreement or to establish or dispute an allegation of professional misconduct against a mediator or other professional participant, that party will usually need to obtain the leave of the court or tribunal.  

Furthermore, section 9 stipulates that a mediation communication is generally inadmissible as evidence in any judicial, arbitral, administrative, or disciplinary proceedings, unless leave is granted. 

When deciding whether to grant leave for either disclosure or admission under section 10, the court must consider whether disclosure is in the public interest, the interests of the administration of justice, and whether the information has already been disclosed under other exceptions. Case law highlights that the “interests of the administration of justice” involve a balancing exercise. For example, the need for a fair trial or the protection of a child may outweigh the general duty of confidentiality. This requirement provides an additional safeguard and ensures that mediation confidentiality is not lightly overridden.