This paper will discuss the issue of confidentiality and evidentiary privilege in the context of mediation. The first part of the paper will examine the background of confidentiality and privilege with respect to the attorney-client relationship, the physician-patient relationship, and the clergy-penitent relationship. It will also examine the scope of governmental privilege, especially with regards to executive privilege and state secrets, and public interest immunity. All of these privileges will be discussed under the laws of Australia and the United States. The second part of the paper will examine the current scope of confidentiality and evidentiary privilege with regards to the mediation setting, both in Australia and the United States. Among the issues which will be discussed in this part are positive and negative aspects of confidentiality and privilege in mediation, the current state of the law, the ability of the parties to adjust the limits of confidentiality, and the remedies available when the legal confidentiality is breached.
Confidentiality and privilege are two similar yet different legal concepts. Confidentiality refers to the status of communications between two or more parties in a relationship. Communications may be made confidential by a contract between the parties, giving one party some recourse in the event the other party discloses the confidential communication. Privilege, on the other hand, refers to the legal inability of a party to testify in a legal proceeding as to the confidential communications between the parties in a certain relationship. Thus, the privilege is an evidentiary one, granted by the rules of evidence in each particular jurisdiction. In fact, the general rule in the United States is that there is no privilege in the absence of a statute granting one. The fact that a communication may be regarded as confidential by the parties does not make it privileged in a legal sense, for...