Some people worry that any concessions they make at a mediation may be used against them at a later date, particularly in a courtroom. Such concerns can impact on a person’s willingness to participate in the mediation process and may hinder the making of offers of settlement and ultimately slow down the process or result in mediation failing.

At the beginning of mediation, parties will be advised by the mediator that the negotiation is confidential. This means if you make a number of concessions, but the matter does not result in an agreement, the other party will not be able to rely on your offer outside of the mediation.

The Family Law Act 1975 (Cth) (section 10J) makes this clear that any evidence of anything said, or any admissions made in mediation, is not admissible in any court.

Like most things, however, there are some exceptions to this rule. These exceptions include:

• Where the mediator becomes aware that a child or adult is at risk of serious harm,
• If there is a serious risk of harm to property, or
• There is risk of a serious criminal offence occurring.

In such a case, the mediator may have to report the threat or information to the Department of Child Safety or to the police or to the solicitor acting for the other party.

It is very rare for mediators to ever have to rely on one of these exceptions and break with the requirement to keep what is said in the mediation strictly confidential.

Parties should attend mediation with an open mind and willingness to make some concessions, where appropriate, in an attempt to resolve the dispute and in the full knowledge that what is said in the mediation room stays in the mediation room and cannot be used against them at a later date.

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This update is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.