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Can conciliation proceedings be disclosed to outside parties?
Conciliation is a form of alternative dispute resolution (ADR) available in many jurisdictions as an effective way to settle conflicts, including commercial matters. It is not as adversarial as litigation, allowing the parties involved more control over the proceedings. However, depending on the jurisdictions, some benefits of conciliation that many take for granted, such as confidentiality, may not be as clear-cut and enforceable as previously thought. Recently, South Africa’s Constitutional Court rendered a decision that created such a situation.
What is conciliation?
Conciliation is an ADR method that involves a neutral third party overseeing a discussion between two parties in conflict to reach a resolution agreeable to all involved. The third party is called a conciliator. Unlike a mediator, a conciliator can not only facilitate the discussion during the proceedings but also offer suggestions and recommendations on how to resolve the dispute. As with other forms of ADR, the disputing parties can exercise greater control over the process than they could if they choose to go to court. Furthermore, ADR proceedings, including conciliations, are known for their confidentiality.
Can confidentiality be broken after a conciliation?
The UNCITRAL Conciliation Rules of 1980 “provide a comprehensive set of procedural rules upon which parties may agree for the conduct of conciliation proceedings arising out of their commercial relationship.” (There is also a UNCITRAL Model Law on International Commercial Conciliation 2002, which conflates mediation and conciliation, but maintains similar language regarding confidentiality. For clarity, this article will use the 1980 rules.) Among the many aspects covered, the rules include language regarding confidentiality. Specifically, Article 14 states: “The conciliator and the parties must keep confidential all matters relating to the conciliation proceedings. Confidentiality also extends to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.” And Article 20 continues with:
The parties undertake not to rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings:
- Views expressed or suggestions made by the other party regarding a possible settlement of the dispute.
- Admissions made by the other party in the course of the conciliation proceedings.
- Proposals made by the conciliator.
- The fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.
However, as quoted at the beginning of this section, these rules are merely guidelines that parties “may” agree to follow in their conciliation. As the rules related to confidentiality, Article 14 already carved out exceptions for “implementation and enforcement.” Furthermore, different jurisdictions with legislation addressing conciliation proceedings may also have their own rules and laws regarding confidentiality. For example, in Australia, discussions in unresolved conciliations on discrimination issues cannot be presented in court proceedings except for discussions on possible resolutions. However, different regulatory bodies have their own rules (reports for Domestic Building Dispute Resolution Victoria can be admissible in court). In Singapore, conciliation proceedings are confidential, but parties may determine disclosure rules regarding any settlements. India follows the UNCITRAL rules but leaves language allowing for exceptions (“notwithstanding anything contained in any other law for the time being in force”).
Conciliation proceedings submitted as evidence in litigation
In South Africa, there are similar allowances as with India (mentioned above) in the 2015 Rules of the Commission for Conciliation, Mediation and Arbitration (CCMA Rules). Specifically, Rule 16 states that conciliation proceedings cannot be disclosed except “as ordered otherwise by a court of law.” With this phrase, conciliation proceedings in South Africa may be allowed to be submitted as evidence in litigation. This was upheld by the Constitutional Court in September & Others v CMI Business Enterprise CC [2018]. Litigating a labor law case, the court held that while conciliation discussions are privileged, they are not necessarily inadmissible as evidence. In this case, the court determined that the discussions during conciliation were needed as evidence to understand the dispute better so that the court could render an appropriate decision. However, this decision raises questions and concerns about how open parties may be willing to be during conciliations in South Africa going forward.
THAC can advise on confidentiality in conciliation
Conciliation can be a very effective form of alternative dispute resolution (ADR). However, as demonstrated by the discussion above, some benefits that parties may take for granted, such as confidentiality, may not be enforceable. Before entering into a conciliation agreement, parties may want to consult with reliable and knowledgeable experts, such as those available at Thailand Arbitration Center (THAC). THAC has the resources and the experienced professionals to assist in all forms of ADR, including mediation and conciliation, in Thailand.
THAC is an international-standard dispute resolution center located in downtown Bangkok. Easily reachable by main roads and highways as well as public transportation, THAC is an ideal location for local and cross-border ADR proceedings. With state-of-the-art facilities and full administrative support, parties can conduct in-person and remote hearings or take advantage of THAC’s online dispute resolution platform. Furthermore, THAC offers access to a range of highly skilled ADR professionals who can act as neutral third-party arbitrators and mediators.
For further information about conciliation, mediation, or any other ADR option, please contact us at [email protected] or +66 (0)2018 1615. THAC is looking forward to helping you.
