Confidentiality is a fundamental principle of mediation. Everything discussed, exchanged, or submitted during mediation remains, in principle, within the boundaries of the mediation process. Parties may not share information about the content, the conversations held, or documents submitted with third parties, including the court. It is also not permitted to refer, in court proceedings, to statements made during mediation or documents that only became available in that context.
Information about how the mediation ended also falls within this confidential sphere. Parties must therefore refrain from making statements about, for example, who took the initiative to end the process.
If a party nevertheless brings confidential information from the mediation into proceedings, the other party can ask the court to disregard that information. It is also possible to request that the court attach whatever consequences it deems appropriate, given the circumstances, to the breach of the confidentiality obligation.
How seriously courts take the duty of confidentiality within mediation is clearly illustrated by the following ruling.
Facts
The employee had worked as a facility security officer for the Custodial Institutions Agency (DJI) since 2001. Due to medical limitations, he had not worked night shifts since 2017 but remained employed in his role.
After a prolonged period of illness, a dispute arose about his reintegration. In 2023, the employer stopped his reintegration into his own role and placed him in temporary, adapted work. This led to tension between the parties. A labour dispute ultimately arose, after which a mediation process was started between the employee and his supervisors.
The mediation did not restore the employment relationship. The employer subsequently asked the subdistrict court to dissolve the employment contract, arguing, among other things, that the employee had behaved during the mediation sessions in a way that made further cooperation impossible.
Ruling
The subdistrict court dissolved the employment contract due to a permanently disrupted working relationship. At the same time, the court ruled that the employer had acted seriously culpably and therefore awarded the employee fair compensation of EUR 48,000 gross.
An important part of that ruling concerned the use of information from the mediation. According to the subdistrict court, confidentiality is one of the foundations of mediation. Precisely because parties must be able to speak openly and honestly, it is usually agreed that everything discussed during mediation remains confidential.
The employer, however, had relied on events from the mediation to support its request for dissolution. According to the subdistrict court, this not only breached the agreed confidentiality but also further damaged the employee’s trust.
The subdistrict court also ruled that the employer had, on several occasions, fallen short in its reintegration obligations. For example, reintegration into the employee’s own role was abruptly ended without sufficient substantiation, while a wage sanction from the UWV (Employee Insurance Agency) later followed for insufficient reintegration efforts.
The court concluded that the resulting breakdown in trust was largely attributable to the employer. A substantial fair compensation was therefore awarded in addition to the transition payment.
What does this mean?
This ruling shows that parties must handle mediation very carefully. The confidentiality of mediation is not a formality but an essential part of the process.
It is therefore important for parties to strictly respect the confidentiality of mediation, to record mediation agreements carefully, not to use statements from mediation as evidence in proceedings, and to seek legal advice in good time if a mediation process stalls.
Mediation gives parties the opportunity to speak openly with one another. That openness can only exist if parties can trust that what is discussed during mediation will not later be used against them.
Do you have questions about (confidentiality within) mediation? Please feel free to contact one of our employment lawyers.
Click here for the full ruling (in Dutch).
