Confidentiality in Mediation in Austria

“Can what I say in mediation later be used against me in court?The answer is: it depends.”

Confidentiality and the duty of non-disclosure are core procedural principles of mediation. They are intended to provide a framework in which parties can speak openly, without having to fear that information disclosed in mediation will become public or later be used against them in subsequent court or arbitration proceedings. Mediation is also not meant to be used as a tool for information gathering in order to explore the other party’s position in anticipation of future litigation.

This often leads to the expectation that all information disclosed in mediation is strictly and unconditionally confidential and must not leave that setting. This assumption, however, is not always correct. Whether – and to what extent – confidentiality actually applies depends on several legal factors, in particular:

• whether the Austrian Civil Mediation Act (Zivilrechts-Mediations-Gesetz, ZivMediatG) applies,
• which mediator conducts the process,
• what type of information is concerned, and
• the context in which information is disclosed.

Confidentiality Obligations of the Mediator

The statutory duty of confidentiality hinges primarily on whether the ZivMediatG applies. This is the case if the following requirements are met:

• The matter concerns a civil law dispute, i.e. a conflict that could, in principle, be brought before a state court or arbitral tribunal, such as contractual disputes between companies or organisations, shareholder conflicts, or other commercial disputes (including B2B matters).
• The process must be conducted by a mediator, who is registered on the list of the Austrian Federal Ministry of Justice.
• The process is expressly agreed as mediation and actually conducted as such. Informal discussions or mere settlement negotiations are not sufficient. If the mandate changes during the course of the proceedings (for example from mediation to coaching or advisory services), the ZivMediatG ceases to apply from that point onwards.

Scope and Limits of the Mediator’s Duty of Confidentiality

The scope of the mediator’s duty of confidentiality differs depending on whether the ZivMediatG applies.

In summary:

For specific issues relating to confidentiality in workplace mediations, see here and here.

Limits of Confidentiality

While the statutory duty of confidentiality under the ZivMediatG is broad, it is not absolute.

In particular, the following are excluded from confidentiality:

• Statutory reporting and protection obligations, for example in cases involving child endangerment, imminent violence or criminal conduct, where the mediator is legally obliged to disclose information.
• Information that is obvious or insignificant, following the approach developed in German case law.
• The mediator may be examined in court on issues relating to limitation periods (see here in more detail), including the beginning and end of the mediation, whether the mediation was duly pursued within an appropriate timeframe, and the subject matter of the conflict, insofar as this is necessary to determine which claims were subject to suspension of limitation periods.
• The mediator may also be examined on issues relating to enforcement of the mediation agreement, respectively the outcome of the mediation.

Confidentiality Obligations of the Parties

A common misconception is that the parties to a mediation are themselves automatically bound by statutory confidentiality with respect to the content of the mediation. This is not correct.

Under the ZivMediatG, confidentiality primarily concerns the exclusion of the public and the mediator’s duty of non-disclosure. If discretion and confidentiality are desired, the parties must therefore enter into a separate confidentiality agreement. This is often included in the mediation agreement but may also be concluded separately. Where assistants or third parties are involved in the mediation, corresponding confidentiality arrangements should also be made.

What are the consequences if a party nevertheless relies on information from mediation in subsequent proceedings despite a confidentiality agreement? In Germany, it is impermissible to submit evidence or rely on mediation content covered by a confidentiality agreement in court proceedings. In Austria, a similar position was advocated in the legislative materials to the ZivMediatG. However, based on existing Austrian case law on the use of unlawfully obtained evidence in civil proceedings, it remains unclear whether such an exclusion of evidence would be enforceable. From a rule-of-law perspective, such an exclusion would nevertheless be consistent.

Takeaway

Confidentiality and non-disclosure are essential preconditions for mediation to function effectively. Their legal scope, however, is not uniform and depends to a significant extent on whether the ZivMediatG applies and on the framework within which the mediation is conducted.

Anyone using mediation, particularly in legally or economically sensitive contexts, should therefore avoid relying on general assumptions and instead clarify at an early stage which form of confidentiality actually applies and whether it should be contractually supplemented. Only in this way can it be ensured that the protected space mediation promises is also legally secured.