The mediator’s duty of confidentiality in court – a matter of course?

The basic starting point in civil cases is that the parties may, within certain limits, present the evidence they wish. Exceptions to this must be provided for in the Dispute Act – it is not sufficient that one has agreed on a duty of confidentiality and a prohibition of evidence.

The Dispute Act makes such an exception for mediators in court mediation – i.e. mediation carried out under the auspices of the court. It is not allowed for the court mediator to explain what took place during the court mediation - however, the mediator can still explain whether an agreement is in accordance with what the parties agreed on during the court mediation.

For mediators in an out-of-court mediation, this duty of confidentiality and the prohibition of evidence do not in principle apply – even if a duty of confidentiality and a prohibition of evidence have been agreed. If you are to be protected by the Dispute Act’s rules for court mediation, including the rules on the prohibition of evidence, you must, according to Section 7-1 of the Dispute Act, agree in writing that the rules of the Dispute Act apply to out-of-court mediation. 

This sounds straightforward, but it is not always so in practice. In the aforementioned ruling from the Gulating Court of Appeal, the mediator’s duty of confidentiality in court came to the forefront – what have the parties actually agreed?

In short, the case is as follows: The parties had entered into a mediation agreement stating that the mediator (a lawyer) must keep all information confidential (duty of confidentiality) and that the parties cannot provide evidence about the negotiations, explanations or statements that emerge in the mediation meeting (prohibition of evidence). However, the Dispute Act is not mentioned in the agreement.

During the mediation, a settlement was reached, but a dispute later arose about the content of the settlement.

In the subsequent dispute, A wanted to present the mediator as a witness, which B opposed with reference to the prohibition of evidence in the Dispute Act. Like the District Court, the Court of Appeal found that the Dispute Act’s rules on the prohibition of evidence apply – even if it had not been agreed in writing. The requirement for writing is thus – according to the Court of Appeal – not absolute, but it takes quite a lot before an exception is accepted.

According to the Court of Appeal, the mediator therefore cannot be called as a witness about what took place during the mediation - but can still explain in line with the Dispute Act whether the settlement agreement is in accordance with what the parties agreed on during the court mediation. The Court of Appeal clarified the latter to mean that the mediator “can, among other things, explain themselves about the content of the offer that led to the agreement, how it was communicated and how it was accepted”, but not about what, in the mediator’s opinion, is the parties’ “actual understanding” of the offer that was accepted.

The ruling has been appealed in its entirety to the Supreme Court, and the main case has been postponed pending a final decision on the procedural dispute. The Supreme Court should seize the opportunity to clarify how the requirement of a written agreement is to be understood and applied, and preferably also further specify what the mediator can explain in all cases.

Regardless of the outcome, it is our advice to be aware of the issue and to put in sufficient work in the mediation agreement –partly to avoid unnecessary surprises and expensive processes regarding procedural disagreements.

You can read the ruling in Norwegian here.

If you have any questions about this topic or other inquiries, please feel free to contact our German Desk.