Made by: Mrs. Mª Ángeles Elías Arteaga.
Teacher of the Master in Mediation and Multidisciplinary Conflict Management
In an in-person mediation, confidentiality is one of the requirements that raises different issues such as, for example, professional secrecy. However, in virtual mediation, that is, in electronic mediation, the question arises as to whether our documents are really consulted in our absence.
Confidentiality, according to art 9 of Law 5/2012, is a principle that extends to the mediator, who will be protected by professional secrecy, to the mediation institutions and to the intervening parties so that they will not be able to reveal the information they could have obtained derived from the procedure.
Taking this principle into account, both the mediator and the parties must preserve the privacy of the documents or information that has been provided in the commercial mediation procedure, eg, the company's accounting books, over which there are differences. and deals with the conflict that arose, the object of resolution.
However, to this general rule, there are exceptions:
– Those cases in which the parties expressly and in writing waive the mediator's duty of confidentiality.
– When there is a reasoned judicial resolution in which the criminal jurisdictional judge requests said information or documentation because it is necessary for the resolution of the conflict.
In reality, it must be stated that the mediator's violation of the duty of confidentiality will generate liability under the terms provided for in our legal system.
For all this, it must be concluded that the principle of confidentiality is directly related to professional secrecy, which the mediator must inevitably comply with, in order not to incur the responsibility to which we have referred.
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