Contract as a Basis for Mediation Confidentiality

Author: Michael Laubscher

ISSN: 1996-2185
Affiliations: Lecturer, North-West University
Source: South African Mercantile Law Journal, Volume 33 Issue 1, 2021, p. 112 – 136


Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.