Confidentiality

Confidentiality means that statements made or information disclosed during the mediation procedure may not be used in any subsequent court proceedings. If the parties to a dispute trusted one another , they might have resolved the dispute themselves, or the dispute might not have arisen at all.

As a principle, confidentality has three components reflected in the relationship between the mediator and the parties, the mediator and the judge (conducting the proceedings) and in relation to public access to the proceedings.

A mediator can reach the core and underlying causes of the conflict only if the parties trust the mediator and are confident that the information discussed will not be disclosed to anyone without their consent.

1.Mediator-party relationship

A party must have confidence in the mediator in order to disclose, during separate meetings, information that the party would not reveal in the presence of the other party or before a judge during court proceedings. For that reason, the mediator must first obtain the consent of the party who disclosed such information before communicating it to the other party. Accordingly, it is necessary during separate meetings to clarify what information the mediator may communicate to the other party and what information must remain confidental.

The principle of confidentality is accompanied by the principle of privacy, since mediation proceedings are not open to the public and third parties may not attend mediation sessions. If the parties agree that third parties, such as students or trainee mediators, may attend mediation sessios, such persons shall be required to sign a statement consenting to their participation.

In the mediation proceedings, the principle of orality is also applied, as no official record or transcript of the the mediation procedure is made.

2. Mediator-judge realtionship

If no settlement is reached, the mediator must not communicate with the presiding judge regarding the mediation procedure or disclose information obtained during the course of mediation.

3. Relationship towards the public

Mediation proceedings are confidental, meaning that withot the consent and approval of the parties to the dispute,  third parties may not attend mediation sessions. The mediator must not disclose information regarding the mediation procedure to journalists, nor discuss the specific case with third parties.

If the parties were to propose the mediator as a witness in potential litigation proceedings, the mediator may refuse to testify regarding facts learned during the mediation procedure, since the mediator is bound by the obligation of confidentality consernig all information obtained during mediation.

Article 5 of The Law on Mediation of Montenegro provides for the exclusion of the public from mediation proceedings, while Article 37 of the same Law, prescribes that such evidence shall be inadmissible in other proceedings.

Impartiality and neutrality

The mediator must act impartially and neutrally. He must adhere to all principles of mediation and deal only with procedural aspects of the proceedings, without giving comments or value judgements, providing advice, or proposing solutions. The mediator`s  impartiality should enable the parties to percieve the mediator as a person genuely committed to resolving the dispute and equally supportive of both parties, while seeking solutions acceptable to each of them. The mediator must bear in mind that his conduct, attitude, and sometimes the mediation techniques applied, may create, for one of the parties, the impression of partiality or favourism. Once such an impression arises, the mediation procedure has already taken a wrong direction.

Voluntariness

A mediation procedure may be  commenced only whith the consent of the parties to the dispute. Mediation cannot proceed unless both parties intend to resolve the dispute.In such cases, mediation may be misused merely  as a means of delaying the proceedings and maintaining the „status quo“.

The mediator should know how to expalin to the parties the advantages of this method of dispute resolution so as  to encourage the parties to participate in mediation voluntarly. The parties should be informed, during the first joint meeting, about the possibility of withdrawing from mediation and about the voluntary nature of the procedure.

The principle of voluntariness applies to all stages of the proceedings, both with regard to accepting the court`s referral to mediation and during the mediation procedure itself. Both the parties and the mediator may withdraw their consent at any time, in which case the matter  shall be referred back to judge. The mediator shall terminate the mediation procedure when he or she considers that the parties are moving further away from the resolution, or have become even more opposed than they were at the beginning of the mediation procedure. The fundamental guiding principle of mediation is that the procedure must not harm the parties or the resolution of their dispute, even where it cannot contribute to resolving it.

Since mediation is only complementary to court proceedings, it must not prevent a party from exercising  the right to free access to the courts and the right to judical protection.

Equality and equal standing of the parties

Although mediation proceedings are not governed by rigid procedural rules, the achievement of the purpose of mediation requires that each party to the dispute enjoy equal rights  throughout the procedure. Mediation would not be considered as a afair procedure if one party were permitted to use force or any other form of pressure to compel the opposing party to accept a particular resolution of the dispute. Such a resolution may formally take the shape of a settlement, but in substance it would not represent a genuine resolution of the conflict.

The parties to the dispute must have equal opportunities to participate in the proceedings, meaning that they must be equally able to freely epress their will, make proposal, and, in particular, freely conclude a settlement agreement. The parties must also possess procedural capacity and be properly represented where necessary. A party should be encouraged to actively seek a resolution to the dispute, while both parties must have a genuine opportunity and personal sense of being able to participate equally in the proceedings. An unrepresented party is in an unequal position compared to a party represented by legal counsel. In such circumstances, the mediator must inform the parties of such inequality, advise them of the need for professional legal representation, or inform them of other avaliable means for exercising  their rights.

Independence of the mediator

The mediator is independent in conducting the mediation procedure, and no one may hold the mediator liable if no settlement is reached.  However, the mediator must comply with professional standards and the Code of Ethics.

Mediators shall not enjoy immunity, whether from civil liability or criminal liability, if they commit a criminal offence or cause damage in the course of mediation.

Legality

The principle of legality applies in mediation proceedings, meaning that both parties to the dispute and the mediator are obliged to comply with mandatory substantive legal provisions. The mediator may withdraw consent to participate in the mediation procedure if the parties intend to conclude a settlement contrary to public order or mandatory legal provisions.

Procedural economy

In mediation proceedings, both the mediator and the parties seek to achieve the desired result with the least possible expanditure of time and financial resources. This includes holding the minimum necessary number of meetings for the purpose of establishing disputed facts, avoiding the involvement of expert witnesses except in exceptional circumstances, reducing court fee expenses, and allowing multiple disputes between the same parties to be resolved through a single settlement agreement.

Assistance to an uninformed party

The mediator has the duty to ensure that each party in the mediation procedure is able to exercise the rights granted by law. For this reason, where a party is unable, due to lack of legal knowledge, to exercise a right available to him or her, the mediator should advise the party on how such right may be exercised. However, the mediator is not a legal adviser to either party, since this could compromise the mediator’s position as an impartial third party. Therefore, assistance to an uninformed party is limited to directing the party to seek assistance from legal counsel.

Privacy

Unlike court proceedings, mediation is characterised by privacy, that is, the exclusion of the public. All persons participating in mediation proceedings are obliged to respect the principle of privacy and to keep confidential all information obtained during the mediation procedure.

Informality

While court proceedings are strictly formal, mediation proceedings are informal. The parties themselves choose the procedural rules, while the law regulates only the initiation, course, and conclusion of the proceedings, as well as the conditions for conducting mediation by mediators.

Good faith and fair dealing

As a general legal principle, the principle of good faith and fair dealing must also be respected in mediation. A conflict cannot be resolved in an immoral or dishonest manner, since such a method would inherently contain elements of instability and could give rise to new conflicts between the parties. For these reasons, good faith and fair dealing, as ethical principles, must be fully respected in mediation proceedings.

Competence of mediators

Recommendations of the Council of Europe, the UNCITRAL Rules of the United Nations, and legal scholars emphasize that mediators must be professionally competent, reputable, properly trained for such work, and provided with opportunities to receive feedback on their performance and pursue further professional education.