Duty of Confidentiality in Mediation

Abstract

This article aims to study the confidentiality during the mediation. The study includes the duty to maintain the confidentiality of each party relating to the mediation, admit facts based on mediation as the probable evidence and calculate liability of each party failing to maintain the confidentiality. The Dispute Mediation Act, B.E. 2562 (2019) prescribes the duty for each party to strictly maintain the confidentiality. In case of proving any liability of one party during the mediation, the court can impose the obligation not to abide with the dispute resolution for both parties. The author personally found the ambiguity regarding the legal imposition. The inquiries include whether or not the same rule will apply with cases conducting outside the court, and if one party fails to maintain the confidentiality causing the damage, which jurisprudence should one apply to calculate liabilities. Comparing to acts in foreign countries, facts obtained during mediation are considered to be confidential that each party is obliged to maintain their confidentiality and not to expose some facts that will affect the right of the evidence owner or being known as “without prejudice”, except from being state otherwise by the laws. For example, the mentioned jurisprudence can be omitted in order to prevent the public from serious harm or to act in accord with agreed dispute resolution. Those exceptions allow the court to admit facts derived from the mediation as the evidence by comparing the necessity and the benefit from maintaining the confidentiality. If the necessity is prioritized, the jurisprudence of admitting facts from the meditation will be omitted. In this part, the legislation of Thailand has not specified an exception the prohibition against hearing evidence for other necessary cases, and have no any law required people involved mediation to be liable due to failure to maintain confidentiality, they should be liable for any damage occurred from their acts. In the conclusion of this article, the author suggests the content to amend the Dispute Mediation ACT, B.E. 2562 (2019) to be more up-to-dated.