What is Off the Record in Mediation?

Mediation is a form of alternative dispute resolution that is used to prevent the disputing parties going through a formal trial in Court. Mediation is usually a confidential process that relies on the concept of “off the record” required. It means that information shared, and statements made cannot be used as evidence if the dispute goes to Court. Therefore, disputing parties can speak more freely in mediation and explore possible solutions without any discussions being used against them in trial.

What are the benefits of “off the record”?

Confidentiality in mediation is protected under the Civil Procedure Act 2005 (NSW), which means that what is said or done during mediation is not admissible in Court or tribunal proceedings. Therefore, mediation is often beneficial in some disputes as it allows for open communication. Parties can speak honestly and openly knowing what is said cannot be used against them. This can help each party gain a better understanding of the other party’s position and interest in finding a solution.

By allowing mediation to be “off the record” it can foster and promote creative solutions, as the parties are not constrained by fear of legal repercussions. This can help parties to think outside the box to come up with better solutions to resolve the dispute. Additionally, “off the record’’ reduces the adversarial tone of the dispute, which generally allows for a more collaborative approach to resolving the dispute.

What are the limitations of “off the record”?

There are some limitations when it comes to “off the record”. Any statements made “off the record” are not legally binding. Any agreements made in mediation are only enforceable once an agreement is formalised and presented to the Court. This is known as Court consent orders. Additionally, all parties partaking in the mediation must agree to keep the discussions in mediation confidential as part of the mediation agreement. Any breach of confidentiality can jeopardise the mediation process. However, there are limitations to confidentiality, as mediators are obliged to disclose if a person is at risk of harm or the information shared is linked to a crime.

How can “off the record” discussions be effective?

“Off the record” can be effective if the mediator clearly states the ground rules of mediation, including what “off the record” and confidentiality means. This means that all parties are aware of the concept. This can help set the tone of the discussion. Additionally, if the mediator holds private sessions (known as caucuses) with each party, it is a good idea for these discussions to also be “off the record”. This means that each party can express their concerns over the dispute and explore potential solutions without the other party being there or fear of legal reprisal.

The concept of “off the record” allows for effective mediation, as it provides a safe space for disputing parties to openly communicate to seek a resolution. If you or someone you know are considering taking a dispute to mediation, contact us for a free thirty-minute consultation with a lawyer.

Any information on this website is general in nature and should not be taken as personal legal advice. We recommend that you speak to a lawyer about your personal circumstances.

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