Q. I am going to a mediation to discuss my divorce. It’s not amicable and I’m concerned about confidentiality. If we can’t come to an agreement in the mediation, can what I say during the session be used against me in any way in court?
Mediation is a confidential and without prejudice process – this means that discussions you have in mediation cannot be referred to in court or disclosed to any individuals outside the mediation (including your respective solicitors) without the express consent of both you and your spouse. The mediator also must not discuss the mediation or correspond with either or your respective lawyers without both of your consent. All factual material relating to any financial issues between you (such as your respective salaries and the amount of your respective savings and investments and/or liabilities) are provided on an open basis and can therefore be disclosed to the court or either of your solicitors. However, once you and your spouse have signed your Agreement to Mediate to commence the mediation process, your discussions with the mediator are shared openly between the three of you but, beyond that, both of you must consent for the discussions to be disclosed to any third party. In any event, the discussions always remain without prejudice and therefore cannot be referred to in court.
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