Abstract:
Confidentiality is a cornerstone of the mediation process. It enables disputing parties exploring the possibility of settling their dispute out of court to speak with candour, secure in the knowledge that any admissions against interest cannot be used at trial if the matter does not settle. The law protects confidentiality not only through contract (the parties’ mediation agreement) but also through the evidentiary mechanism of privilege, excluding statements made and documents exchanged in the course of mediation or settlement negotiations from admission as evidence. The law of privilege for settlement negotiations and mediation in New Zealand lacks clarity, especially in relation to exceptions to the privilege. A proposed amendment to the relevant section in the Evidence Act 2006 (NZ) is making its way through the legislative process. This article describes the problem the proposed amendment is designed to fix, considers whether it achieves that objective and outlines the implications for dispute resolution professionals – both mediators and lawyers – of this shifting landscape for mediation privilege in New Zealand.
