What happens if mediation fails?

Mediation is a useful tool for resolving conflicts, but sometimes it does not lead to an agreement. So, what happens if mediation fails? The answer is simple: nothing. Everything discussed during mediation remains confidential, even if it does not result in a resolution. Let’s explore what this means and how it works.

Confidentiality in mediation

Confidentiality is at the heart of the mediation process. Whether mediation is successful or not, the discussions cannot be shared. If a court case is ongoing or begins after mediation, the court will only be informed that mediation was attempted but did not succeed. The details of the mediation cannot be shared with the court or used in legal proceedings.

This confidentiality rule helps participants feel secure. They can speak openly, knowing their words will not be used against them later. This makes mediation a more effective and open process.

Who can know what was discussed in mediation?

Confidentiality means that only the parties involved and the mediator can know what was discussed. If participants agree to involve others, such as lawyers or legal professionals who are not lawyers, those individuals must sign a confidentiality clause. This protects the details of the mediation.

Many participants want to discuss the mediation with someone outside the process, such as a partner or a close friend. However, this extension of the confidentiality circle must be agreed upon by all parties. Without this agreement, the circle cannot be expanded.

Involving lawyers or legal professionals

If one or both participants have legal representation, those lawyers or legal professionals who are not lawyers must also sign a confidentiality clause. This ensures that the details of the mediation remain protected.

Lawyers are bound by a strict moral code. This code prevents them from sharing any details of the mediation with the court. However, many mediators ask lawyers to sign a confidentiality clause to ensure everyone follows the same rules.

Conclusion

When mediation fails, confidentiality remains in place. Even if the process does not result in an agreement, nothing discussed can be shared with others, including in court. Participants can choose to extend confidentiality to others, like a lawyer or close family member, but only if all parties agree. By respecting these confidentiality rules, mediation remains a safe and effective way to resolve conflicts without fear of affecting future legal proceedings.

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