PART FIVE: COURT-ANNEXED MEDIATION IN LESOTHO

Confidentiality of Mediation

The Court-Annexed Mediation (CAM) Programme is one of the new initiatives that has been introduced in the High Court of Lesotho under the Civil Legal Reform Project (CLRP), with the support of the Millennium Challenge Account – Lesotho (MCA-Lesotho) and the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).

In the last article in this series, we considered the requirement for the Parties in a Mediation to prepare for the Mediator a summary of their respective cases. We concluded that these summaries are intended for the use of only the Mediator during the particular mediation sessions concerned – and not for anyone else; nor for any other proceedings that may arise out of that dispute. The summaries are not for filing in the Court’s Registry. Indeed, even the Judge allocated to preside over the case (in the event that mediation does not succeed), is not allowed to have access to the Parties’ Case Summaries. We explained that all this had to do with conserving and enhancing the Confidentiality of the Mediation Process.

Confidentiality is a critical feature of Mediation. This is because Mediation in general – and especially so Court-Annexed Mediation, in particular – is always understood to be conducted on the premise of ‘without prejudice’ – namely, that whatever positions are taken informally by the Parties in the mediation proceedings, are taken without prejudice to the formal position of the Parties in the event that the mediation effort does not succeed. In other words, the positions taken by the Parties during the Mediation, will not prejudice the Parties if their case is to ultimately go to litigation. Whatever concessions, admissions, submissions and positions the Parties made or took in the Mediation Sessions, stop strictly within the confines of the four walls of the mediation halls.

That is why: (1) the original case file is never transferred to the Mediator; (2) the Mediator does not keep a Record (or minutes) of the substantive proceedings of mediation – (except only to record the agreed settlement of the Parties, and its terms); (3) the Summaries of the Parties’ respective cases are not accessed by anybody else outside the mediation process – not even the Judge allocated to the particular case. The Judge has no access before, during or even after the mediation. This gives the assurance and the confidence to the Parties that their mediation effort will be kept confidential in all circumstances and for all purposes.

Two other factors come in to fortify this position even further. One, in addition to submitting to the Mediator the required Case Summaries, a party that wishes to do so, may submit directly to the Mediator for his ‘eyes only’, any other confidential written statement describing any additional interest, considerations or matters that such Party might wish the Mediator to understand before the Mediator begins the process. Two, the Mediator is bound by a professional code of standards (ethics), to keep the confidentiality of the process over which he presides. All these elements redound to the Confidentiality of Mediation.

The Rules are emphatic. All communications with the CAM proceedings are confidential. In particular, no person may disclose to the assigned Judge any communication made, position taken or opinion formed by any Party or the Mediator. A few, largely technical exceptions are allowed – but the robust thrust and spirit of the Rules is to provide for water-tight confidentiality of the Process.

Confidentiality is a feature, perhaps above all others, that makes Mediation highly attractive and desirable – especially to Parties whose business, profession, position or other consideration require the tight cover of confidentiality. This could, for instance, be the case with business or company secrets, intellectual property, divorce, custody of children, etc. These are issues which may, in most (not all) instances best be addressed outside the glare of the public eye and the resonance of the public ear!

For more information please contact:

The Office of the Registrar

Palace of Justice

P. O. Box 90

Maseru

Tel: 22323164

Fax: 22321375