Confidentiality & Privilege Confidentiality and Mediation This paper will d

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 th

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could possibly bring an action for any damages which resulted from the breach of this duty. Executive Privilege and Public Interest Immunity Executive privilege and public interest immunity both deal with evidentiary privileges exercised by governmental entities. In the United States, executive privilege has been claimed by the President as a constitutionally-based privilege against disclosing information held by the executive branch of the government. Public interest immunity is based upon common law and has been most often claimed by executive governmental entities seeking to exclude certain documentary evidence from being produced at legal proceedings. As will be seen, both privileges are based upon the general interest of the public, representing, in effect, a "duty of confidentiality" owed by the executive organs of the government to the public. The information, however, is really not derived from any "communications" between the government and the public; instead, the confidential information is almost always the result of official work performed by executive agencies, such as through intelligence operations. Ironically, then, the holder of the privilege is the party who owes the duty of secrecy, not the party to who

Category: Government - C