By Juan Diego Mata
Confidentiality is one of the essential pillars of professional mediation. It is always explained at the beginning of the process and builds trust: the parties feel they can speak freely, without fear that their words will be used against them. However, a key idea is often forgotten: Confidentiality has limits, And understanding them is vital to properly protect the process and avoid false expectations.
When a person goes to mediation, they hear that everything they say will be confidential. But this It doesn't mean it's an absolute secret., Nor can the mediator guarantee that “nothing will leave this room.” In reality, the law does require confidentiality, but it also establishes clear exceptions. Understanding these exceptions helps to strengthen trust in the process and avoid misunderstandings.
Confidentiality implies that the information shared during mediation It cannot be used outside of the procedure, Neither the parties nor the mediator can provide any information about the conversations, documents, or proposals to the court, and the mediator cannot be called to testify about what was said during the sessions.
This commitment has a very positive effect: it fosters open dialogue. People feel they can explain their true interests without fear. Thanks to this, avenues for agreement open up that would not exist in a legal process.
There are situations in which the mediator must break confidentiality, not of their own volition, but out of legal or ethical obligation. Some common examples are:
- Risk to a person's life or safety. If a real threat against someone is detected, the mediator cannot remain silent.
- Evidence of a crime that is prosecutable ex officio. Confidentiality does not protect illegal conduct. If information about serious crimes comes to light, it must be reported to the appropriate authorities.
- Protection of minors or vulnerable people. Any situation that affects their well-being should be addressed.
- Fraudulent agreement or regulatory evasion. If the parties attempt to use mediation to cover up tax, property, or legal fraud, the mediator cannot protect it under "secrecy".
These limits do not eliminate confidentiality; They refine it and adjust it to the general interest.. The mediator is not a notary of silence; he is a professional who collaborates in the peaceful resolution of conflicts within the legal framework.
Ideally, this should be done from the beginning, during the information session:
“Everything said here is confidential… unless there is a risk to people or conduct that the law requires to be reported.”
This clarity doesn't diminish trust; it strengthens it. People perceive honesty and professionalism, and understand that the mediator acts within an ethical framework.
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