NSW Can Confidentiality in Mediation be Broken?

Discussion in 'Other/General Law Forum' started by faustus, 3 June 2019.

  1. faustus

    faustus Well-Known Member

    26 November 2016
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    I have never been involved in civil proceedings before. Several months ago, I was misled into agreeing to mediation with a government agency and on the day of the mediation I realised that it was not what I thought it was: I was led to think that it was to narrow the scope of my complaint, whereas my understanding is that the point of mediation is meant to settle a matter without going to a hearing.

    Regardless, during that mediation, the agency asked me what the remedy I was seeking was. I told them what it was. I also explained some other things that I believed that they had done. This was the first time I told them that.

    Recently, they filed their legal submissions and affidavits. Immediately upon reading them, I could tell that they had illegally modified and created documents.

    My question is as follows:

    I would like to convince the NCAT that the respondent has unlawfully spoliated evidence. In order to demonstrate this, it would help a lot if I could state what I said to the respondent during mediation. Am I allowed to do this?

    If it makes a difference, I would be divulging two things:
    1. One remedy I was seeking that they were required to do, would cost them many millions of dollars. They have neutered this by modifying an electronic record
    2. One specific thing tiny that they did, which they basically diffused by writing something on a Post It Note and then attaching it to a paper record

    The reason why I ask is that although mediation is meant to be confidential, I did find the following:

    Source: What You Need to Know About Confidentiality in Mediation - Dispute Mediation Services Melbourne

    In other words, they have taken information acquired from that mediation and used it to unlawfully modify evidence. And this has been done in a way that allows them to escape the consequences of the very wrongdoing giving rise to the complaint.

    Any help is much appreciate
  2. Rob Legat - SBPL

    LawTap Verified

    16 February 2017
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    It's a big allegation and one that's unlikely to get much traction with the courts unless you can provide some clear evidence. Unless you have some hard documentation which demonstrates what you're claiming then you'd be very hard pressed to convince a judge to listen to you. Government agencies and public servants in general are usually given the benefit of the doubt simply by their very nature.

    It's an unfortunate aspect of mediation that you need to be very careful how you play your cards. It is an art form, in that you want to show enough to convince the other side that it is in their favour to make a fair settlement attempt, but not enough that you tip them off to your argument.
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  3. Rod

    Rod Lawyer
    LawTap Verified

    27 May 2014
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    Plus the days of trial by ambush are over.

    You need to layout all your cards as a plaintiff anyway so unless they are falsifying documents I don't think you have any additional cause of action.

    What you can and probably should do is seek discovery of the modified record to find out what was modified and when.
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