Made by Ms. Gabriela Alés Hermosa, Academic Director of EIM – International School of Mediation
As An essential principle of the mediation procedure is confidentiality, included in art. 9 of Law 5/2012. The trust of the parties in the mediation procedure is based on this principle, so it is not unusual for people who attend mediation, in the first information session, to wonder about compliance with this principle.
In order to reflect on this principle, we find it interesting to carry out an analysis of the ruling of the Provincial Court of Barcelona 500/2020 of September 17, 2020 in which the Sixth Fundamental of Law is dedicated to breach of confidentiality in the mediation process by the defense lawyer, making clear the importance of compliance with said principle.
This is a procedure in which the parties were referred to mediation and after the beginning of this it finally came to an end without agreement. Firstly, the Court makes a point, as a simple warning, to the lack of communication of the completion of the procedure, by lawyers and the mediator, in compliance with article 19 of the Mediation Law of Catalonia.
However, the Court does not overlook that the defense lawyer breached the principle of confidentiality by contributing to the judicial procedure different documents that were worked on in mediation and by revealing in writing some partial pre-agreements that were reached in the procedure and that ultimately did not come to fruition.
The Court declares that the duty of confidentiality affects all those involved in the procedure although, referring to the lawyers, “it affects them with much greater intensity, since as the first supporters they must be of this method that is intended to be managed cooperatively or in collaboration. differences between clients in order to be able to reach agreements that allow for a better possible future for their clients, they must previously preserve security and mutual trust in everything that is discussed, whether agreements are reached or not.
As we highlighted at the beginning of the post, The trust of the parties is essential in mediation and this trust is based on the principle that concerns us now. In this sense, the Court affirms that “Only in this way is it guaranteed that the parties go to mediation with peace of mind and with the confidence that they will be able to speak there without fear of what is said, what is proposed, what they are willing to be used against them.” give in and that they can leave the strict procedural framework to rethink the controversy and make contributions to reach some of the multiple possible solutions.".
Based on everything written, the Court considers that the violation of the duty of confidentiality of the parties generates liability, understanding said infringement “contrary to procedural good faith and economically sanctionable, in accordance with the provisions of art. 247 of the Civil Procedure Law”, therefore it opens a separate piece, giving a hearing to the lawyer to be able to determine the amount of the fine to be imposed for said serious infraction, also notifying the Bar Association of which she is a member.
Conclusion, We can affirm that the duty of confidentiality in mediation cannot be underestimated, this principle being a guarantor of the trust and freedom with which the parties must work at a mediation table in order to propose options that can lead to lasting agreements over time. and beneficial for everyone.
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