NSW Can Confidentiality in Mediation be Broken?

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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:

There are some important exceptions to the rule preventing confidential information provided during mediation from being used in court. The main exceptions are:
  1. The dispute in court is a dispute to enforce an agreement. This means that, if the parties reach an agreement at mediation, then evidence of that agreement can be used in court to enforce the agreement.
  2. The evidence is being used to determine which party is liable for legal costs. The general rule is that the loser in court proceedings pays part of the other side’s legal costs. However, if a party has rejected a reasonable settlement offer, then they may lose some of their entitlement to costs or be required to pay costs themselves. Evidence of settlement offers can be brought before the court to determine this question.
  3. The parties consent to the evidence being presented to the court.
  4. The confidential information has been disclosed with the consent of all parties or the information was not intended to be confidential in the first place.
  5. The evidence was used to further fraud, offence or abuse of power.

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
 

Rob Legat - SBPL

Lawyer
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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.
 

Rod

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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.