Confidentiality in Mediation in Resolving Property Disputes: Reality and Challenges

ანოტაცია

Mediation is a process based on the interests of the parties, which increases the mediators rights to the extent permitted by the disputing parties. The story of the apple heart and rind related to mediation also seems to be easily understood, but, at the same time, it is considered to be a complex problem. In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In fact, this regulation requires a change to specify clearly what type and amount of information a mediator is required to provide to a minister. Also in This work is explained the legitimate grounds for breach (break) of confidentiality. in the course of obligation to disclose information by another court decision, the court should only require the disclosure of information directly related to the case from the mediation participants. At the same time, the restriction that information should be disclosed only to an adequate and proportionate extent to a lawful purpose can be considered as a useful tool for the protection of a legitimate purpose – the confidentiality of information. Ultimately one of the important functions of a mediator for the successful completion of mediation in business disputes is to focus on the interests of the parties.

Keywords: Mediation, Confidentiality, The legitimate grounds for break of confidentiality and business disputes.

Introduction

Mediation, as an alternative way of resolving disputes, is not a modern event. It has deep roots in history. The story of the apple heart and bark associated with mediation is also as if it is easily perceived, but at the same time, it is considered a complex problem. The point is that mediation has been formed as a result of the development of historical, social, cultural, and modernist thinking. Creating a psychological portrait of the disputing parties, clarifying their real demands, flowing upon the surface the increased desires or emotions, maintaining confidentiality, and, at the same time, keeping  neutrality - this is art, Which is called mediator skills. Benjamin Franklin said: Time is money. These two words and capitalist thinking have further deepened the search for simple ways to resolve disputes. Mediation is the best way to resolve property disputes purposefully quickly, efficiently, at a lower cost, and peacefully. The parties to the mediation are looking for not only a quick way to resolve the dispute but also points of contention. The result of mediation is not the achievement of "loss-making", but the beneficial and peaceful solution of the dispute between the parties.[1] Therefore, mediation creates an opportunity for parties to continue their business relationships even after the dispute is resolved.[2] 

The study-perfection of both the legislative and the practice of confidentiality in mediation may refine the legislation, reduce the number of violations, facilitate case identification during violating secret spheres and have a positive impact on the effective resolution of property disputes between parties in the practice.

§1. Mediation and property disputes
1.1. The importance of confidentiality in the property disputes

Property is a relationship that arises between entities concerning property goods. Intangible property goodies are requirements and rights.[3] 

As for non-property disputes, they should be considered as the opposite of property disputes.[4] In this context, it is important to compensate for intangible damage in cases of violation of personal rights, which is stimulating and performs compensatory-satisfiable functions of the damage caused.[5] In my opinion, the role of the mediator in such disputes is minimal because it will invade the space of more psychology and lose its self-esteem. One of the types of property disputes is family property disputes, which also show the positive features of mediation.[6] The mediator has the right to meet parties separately for 10-15 minutes shortly before the joint meeting with them to ease the stressful and neurotic environment.[7]  

Business is an English word and means activities aimed at making a profit, the environment of which is a space full of legal and economic regulations. any state aims to establish an effective legal framework to be attractive to businesses.[8] Business law is not a separate type of classic field and unifies several fields of law.

Confidentiality is considered to be an independent principle among the principles of the mediation process, which can be seen by various peculiarities according to property and non-property disputes. Accordingly, it should be determined the essence and peculiarities of confidentiality, the circle of confidential spheres in mediation, and then - the notion of property dispute, its distinction from the non-property dispute, and specific signs of property dispute resolution in mediation. That is, the challenges facing Georgia in the field of mediation must be defined, especially in the context of confidentiality. 

Particularly noteworthy is Article 10, Paragraph 4 of the Law of Georgia on Mediation, on the legitimate grounds for restricting the principle of confidentiality and the exceptional cases of disclosure of information by a mediator. It should be noted that Subparagraph "T" of Paragraph 4 of Article 10 does not preclude the possibility of one party possessing confidential information before mediation, which automatically relieves the party of some obligation to protect the principle of confidentiality. However, the law does not specify whether the party will be deprived of the right to disclose this information after the commencement of mediation. When it comes to mediation in property disputes, more specifically mediation for business, the principle of confidentiality becomes vital. When discussing the principle of confidentiality in this paper, you will find the reasons for its vital necessity: Effective mediation requires sincerity; Fairness to litigants requires confidentiality; The mediator must be neutral both in fact and in the perception of the parties; Privacy is an incentive for many to choose mediation so as not to expose "dirty underwear" in public; also guarantee the protection of mediation programs from publicity and harassment.[9] These reasons may show the need to better protect the principle of confidentiality in national law in parallel with legitimate restrictions. In addition, the institute of mediation became even more relevant during the pandemic, as most human-to-human relationships, including dispute resolution, shifted to distance mode to prevent infection. This is even more interesting in terms of protecting the privacy of the mediation process, especially when there is a high risk of violating private interests when using the Internet.

In my opinion,  the nature of mediation is best expressed in property disputes. In this case, the mediator slowly begins to untie the knots, assemble the mosaic, deepen in the essence of problems, bring them to the surface, separate the desires of the parties and differ them from their whims. At the same time, the mediator tries to neutralize the stress and prepare both parties to reach a consensus together. It is here that the factor of trust that the parties derive from the existence of a degree of confidentiality is one of the main factors in completing the case by a settlement.

1.2. The circle of property disputes and their characteristic features

According to the material-legal content of a property dispute, a property dispute is a dispute related to property, which means that the dispute is focused on obtaining financial benefits, regardless of whether the property is materialized (visible) or intangible.[10] The circle of property disputes consists of family, ownership, liability (obligation), contract, corporate, entrepreneurial, and other disputes. Property is possession and obligatory (liability) legal relations. Possession and ownership in property law regulate the material legal regime of persons over the tangible and intangible property. It is characterized by a sign of permanence, while a obligatory relationship regulates the relationship between individuals that arise based on contracts and between specific individuals. The claim arising, in this case, relates to a property interest. For example, it may be related to the possession of an item.[11] The most common form of emergence of a business relationship can be considered a contract. The general part of the law of obligations is common to all private law contracts.[12] As for the disputes arising from the entrails of family law, this issue is regulated by the third chapter of the first section of the fifth book of the Civil Code of Georgia, where the rights and obligations of the spouses are mentioned.[13]

§ 2. The essence of privacy and the circle of confidential data
2.1. The essence and features of privacy

In the mediation process, the mediator informs the parties about the terms and conditions of confidentiality. Due to confidentiality, the important circumstances of the case are discussed openly and in-depth, the parties discuss and disclose confidential information to them because they know that the information disclosed during the mediation will not be used against them.[14] The principle of confidentiality is characterized by features and it is manifested within its limits. Although mediators often make extensive statements and argue that everything in mediation is confidential, the norms governing mediation give a different reality. Such a simple way of offering confidentiality does not contribute to the self-determination of the parties.[15] For the parties to self-determine, they must know - how much information to give, in what form to communicate, what level of trust they should have. When the providing of legal information is neglected, the party does not act according to its own decision, but by deception. Informed consent in mediation is exactly the basis of self-determination and at the same time refers to the principle of confidentiality. Although mediation is advertised as protecting the privacy of the parties, it does not give absolute immunity. If the majority of the parties prefer that everything that is revealed in the mediation process be kept secret, then the mediator should inform them about the exceptional cases that the law requires the mediator to disclose information.[16]

2.2. Circle of confidential data

Confidential information protects any information that became known or disclosed during the mediation process. Even if there is a legitimate basis for restricting confidentiality, the information should be disclosed to the maximum restricted extent, of which the relevant party shall be notified in advance. In addition, information may be disclosed only adequately and proportionate to legitimate aim in such a way that the confidentiality of the information is protected as much as possible from outside persons.[17] Such assessment components may pose new threats to a high degree of confidentiality. It is interesting how correct is the record in Article 10, Paragraph 7 of the Law of Georgia on Mediation on the duty of protection of confidentiality for an indefinite period. In the mediation process, the parties may not be able to evaluate what information they want to store in the future and what information may be intentionally or unintentionally made accessible (disclosed) to the public. Therefore, they did not agree in advance and in writing on the period of their confidential storage. Over time, information that is no longer confidential may be disclosed by the information holder himself or by any person involved in the mediation without thinking, and this in itself may produce problems in the area of confidentiality. Therefore, it may be appropriate to have a record in the future in Georgian law following the German model: After the mediation is completed,  if the information is already clear, open, and revealed to everyone, there is no legitimate interest to keep confidentiality of that information and is no longer subject to the protection of confidentiality principle.

§ 3. Entities bound by the duty of protection of confidentiality
3.1. Parties and representatives of the parties

The parties have the right to choose a mediator at their discretion.  The initiating party of mediation may send a written invitation to the other party to resolve the dispute through mediation.[18] The other party may accept the invitation or decline it. Only after the voluntary consent of both parties do the parties begin to establish rules and select a mediator. In the case of private mediation, in the event of concluding a mediation agreement, the principle of confidentiality applies only to persons signing the contract, therefore it will be better if third parties who will be involved in the mediation process will sign that contract at the same time as the disputing parties, representatives and the mediator will sign.[19] It is important to note that the parties should be interested in each other, have positions that share and reconcile the interests of both parties. This will help the mediator to plan the agenda and manage the mediation process effectively. The parties should also observe their relationship separated from mediation if this relationship continues.[20] The representative, together with the party, should select a mediator with the appropriate skills for the case. Representatives of the parties should also be able to: A) work on the conditions voiced in the mediation process; B) draft an act of agreement and legal interpretation; C) termination of mediation in case of its ineffectiveness and disadvantageous (perspectiveless).[21]

3.2. Mediator, third parties

Compliance of the mediator with the best standards is not enough to successfully manage mediation, it is necessary for the mediator to develop certain skills, for example: Ability to search for alternative ways, ability to obtain the necessary information based on questions, ability to raise necessary issues under the status of a neutral third party.[22] The mediator can use paraphrasing, which will allow the parties to see the situation or facts from a different angle, and as a result, parties can change their behavior. The purpose of paraphrasing is to transform an aggressive environment into a friendly situation and to try to move the parties from the positioning stage to the representation of their interests. In the presence of a strong emotional background, the parties sometimes think the problem or complaint is unacceptable and absolutely unsolvable, here too the mediator can change the wording of the complaint to show the party that the problem is solvable if he wishes.[23] Under German law, third parties, such as mediator assistants, who have an obligation not to disclose information about the mediation process, may be involved in mediation in addition to the parties and the mediator, however, with the consent of the parties, experts, or neighbors involved in third parties are not bound by this obligation.[24] According to Georgian law, participants in mediation are prohibited from using information obtained during the mediation process in court. Thus, we must assume that the general rule applies to third parties as well: the mediation process is confidential. Therefore, logically they should not have the right to disclose information. However, we do not find a specific entry on this issue in the Law on Mediation, It is also unclear after the completion of mediation according to Paragraph 7 of Article 10 of the Law of Georgia on Mediation, whether the third party is also implied in the obligation to protect the confidentiality and this poses a problem. In my opinion, it is better to include third parties in the record of this paragraph. Moreover, the Minister of Health, Labour and Social Affairs of Georgia can be considered as a third party in labor disputes. The Minister has a wide range of powers in process of collective dispute mediation.

§ 4. Business Mediation and International Acts
4.1. Recommendations for successful mediation

When it comes to business mediation, one type of effective mediation can be considered interest-based mediation. Institutional commercial mediation is a court-free process of private mediation that conforms to the usual characteristics of modern mediation, but for various reasons, it is less commonly used by foreign enterprises.[25] Recommendations for successful completion of business mediation are: A) Creativity of the mediation process (invitation of experts in the presence of the parties); B) to have fun in process of mediation. The process of mediation is mostly tense and emotional background prevails, especially tiring when this process takes hours.Therefore, a little humor and laughter will help the mediation process; C) Patience, listening carefully to the problems of the disputing parties. the glacial pace of offer and demand can be frustrating and can lead to a worsening of the situation, so it is best when the parties continue a productive discussion; D) realistic evaluation of the case and flexibility; E) mediation is not a trial. Subject to the variances due to case complexity, very little is gained, and much might be lost than would be possible through court. The goal of mediation is to reach a compromise, not establish victory. F) Design a process that works for your client.  In multi-party business disputes  it maybe essential that the process be segmented. It is necessary to listen to all parties separately if the emotional background prevails; G) Identification of goals - The mediator should be able to assist the party representative or the party itself in planning a wide range of settlement options and finding ways to resolve them, as well as in determining the predicted outcomes of the mediation process.[26] In 2020, the pandemic of the Covid-19  plunged the whole world into a deadlock, with many commercial relations suspended without the fault of the parties, hence the courts of the whole world are preparing for the tsunami of legal cases arising from the pandemic, And the main thing for business is to survive this global economic downturn, which will depend on a timely and commercially reasonable solution to the dispute, and mediation can be considered an effective tool.[27]

Detailed protocols as to the conduct of online hearings have been almost universally developed by both courts and arbitral institutions, focusing on fairness, efficiency, use of innovative technology, confidentiality and cybersecurity. Legislation adopted in response to the pandemic in the jurisdictions surveyed by the International Bar Association is largely focused on public health.[28] As the pandemic’s impact has continued, many stakeholders have increasingly used innovative digital technology, flexible scheduling and flexible cost structures. Innovative digital technology being used for dispute resolution proceedings includes document management and automated docketing, blockchain, visual perception tools (including facial recognition technologies, radar, light detection and ranging (LIDAR) and ultrasound sensors) and etc.[29]

4.2. The issue of mediation confidentiality and autonomy under the UNCITRAL Model Law

The United Nations Commission on International Trade Law (UNCITRAL) was established for the facilitation of international trade, as well as to modernize and unify it.[30] UNCITRAL plays an important role in developing that framework in pursuance of its mandate to further the progressive harmonization and modernization of the law of international trade by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law.[31] In 2018, the UN General Assembly adopted a resolution emphasizing the importance of mediation.[32] The UN Assembly Resolution on the Model Law mentions the benefits of mediation, which are related to the unloading of justice, the elimination of tensions, and the chance to continue commercial relations as opposed to litigation. Under Paragraph 3 of Article 1  of Model law on international commercial conciliation, the conciliator assists the disputing parties to settle the dispute amicably, although the conciliator does not have the authority to impose upon the parties a solution to the dispute. Articles 8 and 9 of the Model Law are noteworthy. Article 8 regulates the disclosure of information provided specifically by a party, according to which when the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation.[33] Article 9 regulates the issue of privacy in general, according to which unless otherwise agreed by the parties, all information relating to the conciliation/mediation proceedings shall be kept confidential, except where disclosure is required under the law or for the purposes of implementation or enforcement of a settlement agreement.[34] Thus, there is a small difference between disclosing the essence of the dispute and information protected by the principle of confidentiality in general.

§ 5. Legitimate grounds for breaking confidentiality
5.1. Confidentiality - Relative or Absolute value?

Civil rights are a power granted by civil law to protect the interests of private individuals.[35]  The right to confidentiality is also the right of the subject, but in order to determine its nature, it is necessary to consider absolute and relative categories. The categories of absolute and relativity are considered to be ontological fundamental categories of philosophical discipline. Absolute in itself is considered to be eternal, independent of another event. As for relativity, it is matched by the word "relative. According to the ontological opinion, relativity is defined as dependent on others. Consequently, an event of relativity cannot exist independently. These are philosophical beginnings reflected in relativistic and absolute right. A characteristic of a relative right is that a legal relationship arises between specific individuals. For example, it is based on a contract.[36] Absolute rights include personal rights as well as ownership over the intangible property same as The right of property, which is important from an economic point of view, and relative rights include requirements (claim-right) and Privilege-rights.[37] Requirements and Privilege-rights are often found in contractual relations and are an integral part of economic space. In this regard, confidentiality is a means of unilaterally influencing the relationship between the disputing parties, and it gives rise to a claim of relativity nature from a particular situation, namely, within the framework of a confidentiality agreement, but, on the other hand, confidentiality, as the absolute value does not have a statute of limitations under national law, any information entrusted in the mediation process is subject to protection for an indefinite period.

5.2. Legitimate grounds for interference with confidentiality
A.   Protection life, health, or best interests of minors

Life is the supreme value of man, from which derives freedom, human mental development, and human happiness. The right to life itself protects the natural existence of humans and at the same time creates a precondition for the enjoyment of other human goods.[38] There are some legal justifications for breaking the seal of confidence established in the mediation conference.[39] According to the Law of Georgia on Mediation, one of these purposes is to protect life and health. The purpose should be obvious, the protection of these virtues should be necessary for the moment (in the present), the danger should be real and not hypothetical. As an example of a legitimate public purpose, the Constitutional Court noted that any interference with human rights in the absence of a legitimate public purpose is arbitrary.[40]

As far as the best interests of minors are concerned, the communication produced in the mediation process cannot be covered under the privilege if it concerns the protection of a child/adolescent. Attention should be paid to the Uniform Madiation Act, according to which, regardless of the exceptions under which the mediator is obliged to waive the privilege of confidentiality, the mediator should be limited to providing simple (formal, dry) information about the conduct, completion, mediation, and settlement of the mediation process between the disputing parties to the bodies that may decide the fate of the dispute between the parties.[41] By the Code on the Rights of the Child, when determining and evaluating the best interests of the child, the realization of the right to development in the family environment, social characteristics, his / her views, ensuring equality and protection from violence are taken into account.[42] It is interesting to see how the interests of the child and also the parents are protected in the Florida dispute resolution center’s ADR resource handbook, according to which, records and reports on child abandonment or child abuse are kept confidential by the Department of Health in order to protect the rights of the child, the child's parents, or other persons responsible for the welfare of the child in the process of alternative dispute resolution.[43]

B. To confirm mediation arrangements; For voluntary execution or forced execution

The legitimate grounds for breaking confidentiality - to confirm mediation, voluntarily or compulsorily, based on another decision having binding legal force - will make it clear that not all confidential communications are protected by privilege and all privileged information is confidential.[44] However, privilege and confidentiality are not absolute values and the existence of exceptions is aimed at striking a balance between public and private interests.[45] Confidentiality in mediation is one of the prerequisites for a safe environment for both the parties and the mediator. However, this particular exception to the "blanket" rule, which obliges the mediator to break the principle of confidentiality to enforce mediation settlement, poses some risks to the mediator himself.  The mediator should not move to the position of a witness at the moment of disclosure of confidential information to execute a mediation settlement. As of today, according to the imperative record of the Civil Procedure Code of Georgia, a person participating in the mediation process may not be called as a witness and questioned in connection with the confidential information that became known to him / her during the mediation process.[46] This record and Paragraph 5 of Article 10 of the Law of Georgia on Mediation, according to which information may in exceptional cases be disclosed only adequately and proportionate to legitimate aim in order to be maximally protected from making accessible (disclosing) to the public - this is a shield designed to protect the neutrality of the mediator and his profession.[47] There are differing views on the issue of confidentiality in mediation, although interesting from the Massachusetts court rulings in the United States is the unpublished opinion of of a single justice of the Appeals Court, Judge Cynthia Cohen, in 2002.[48] According to the facts, the mediator was summoned to the court of the first instance to testify whether an agreement had been reached between the parties and the relevant materials was submitted, at the same time, the judge substantiated the fact of summoning the mediator as a witness by arguing that the privilege of confidentiality is enjoyed by the parties and not the mediator. Therefore, if the parties refuse to protect the confidential information or as a result of their actions it is necessary to disclose this information, the mediator is obliged to testify in court.[49] The mediator appealed the ruling to a single justice of the Appeals Court and Single Justice found that whether or not the parties have chosen to maintain the confidentiality of the mediation does not permit a party to compel the mediator to testify and to require the mediator to reveal communications made in the course of the mediation. Compelling such testimony, even if potentially helpful to the motion judge’s decision on the merits of the parties’ dispute, would conflict with the plain intent of the statute to protect the mediation process and to preserve mediator effectiveness and neutrality. Contrary to this, can be cited the law on mediation implemented in Turkey and Article 5 of the Normative Act on Civil Disputes, according to which the mediator has the right to appear in court as a witness if there is a written consent of the parties.[50] According to the national legislation, the issue of confidentiality of any information under a written agreement may be the subject of mutual agreement between the parties, which raises the question of whether the party is allowed to request more information from the mediator to confirm the mediation settlement in court. In addition, if we look at Paragraph 2 of Article 10 of the Law of Georgia on Mediation, the mediating parties may not use the information protected by the confidentiality Article in court. But if there is a written agreement between the parties on the non-confidentiality of the information, will the information no longer be logically protected under the article of confidentiality, and in this case, it is even possible to use such information in court? In my opinion, it is better to improve the national legislation in this regard as well.

C.  fulfillment of the legal obligation undertaken before the initiation of mediation (Limited Disclosure)

To fulfill the legal obligation undertaken before the initiation of the mediation, one of the parties may disclose the information that became known during the mediation process, taking into consideration the fact that the disclosed information shall be limited to the maximum extent. The legal obligation undertaken before the initiation of the mediation a party may have to an outside person who is not involved in mediation at all. For example, if a business entity got information in the mediation process that it will be more profitable to repay the loan this year than to repay the loan monthly, it may use this information in consultation with other persons or lender to be able to fulfill its legal obligations. At the moment of disclosing this information, the party should take into consideration the fact that the disclosed information shall be limited to the maximum extent.

D. The disclosure of the information is necessary for the investigation of a particularly serious crime.

One of the preconditions for breaking confidentiality is to reveal facts containing information about the crime in the mediation process.[51] According to our legislation, at this time the information should be disclosed as small amount as possible and  the respective party shall be preliminarily notified. The Georgian Law on Mediation does not pay attention to other specific details, for example, a crime already committed, a crime planned in the future, or both. If you look at part of international practice, confidentiality can be broken if you have facts about the crime, for example, features of planning, attempting to commit or committing a crime, covering up criminal acts, or the existence of violence.[52] In this case, the existence of reasonable suspicion is of great importance, which means that the signs of crime should actually appear in the disclosed information.   

E. the information disclosed during the mediation process on the condition of maintaining confidentiality  received before the initiation of mediation or from a public space

The purpose of confidentiality is to reduce the parties' fear of sharing information so that the problem can be better understood and the parties themselves can find ways to solve the problem. If real information is not exchanged, the principle of good faith will be violated, and eventually, mediation will not be effective. However, there is a risk that in the event of a failed mediation, the information revealed in the mediation process may be disclosed or misused by another party, as confidentiality does not relate to information known to the party before the mediation or may be obtained through other permissible means.[53]  This record puts business entities operating in commercial relationships in an unfavorable position. Requesting public information is not a violation of the law, but it is interesting if the mediation process helped one party in the disclosure of the strategic important information of the other party  (meaning: What this information should have been and where it should have been found). 

F. To protect the legal interests of the person disclosing (who disclosed) information

In the event of a legal or disciplinary dispute arising out of the mediation process, the person against whom the legal dispute is directed is allowed to disclose only the information based on which he will be able to defend his interests. The parties involved in mediation are obliged to keep the information disclosed in the mediation process confidential. "Internal" and "external" confidential information differs from each other.When it comes to maintaining confidentiality in the internal circle of information, that is, when there is an exchange of information between the party and the mediator, the protection of confidentiality is the responsibility of the mediator. Therefore, the mediator's activities may be based on (a) open communication or (b) confidentiality approaches. In open communication, information is protected by the principle of confidentiality not from other participants in the mediation, but from outside third parties, which means that persons involved in mediation (experts, parties, support staff) for whom this information is known should not disclose confidential information to third parties.[54] During open communication in mediation, experts may be provided with a certain amount of information,  and if the litigant imposes liability on the mediator for disclosing relevant information to those involved in open communication, the mediator may justify his/her position and can reveal relevant information from open communication during a current dispute against him/her. In this way, the mediator will be able to protect his/her interests.

Confidential information may be disclosed to an authorized person or body only to the extent that is adequate and proportional to the legitimate purpose so that the confidentiality of the information from a third person is maintained to the maximum extent.  The requirement of the principle of relevant, which in itself implies proportionality, states that any restrictive measures of right should be effective, admissible, and necessary to achieve the legitimate aim pursued.[55] to achieve the legitimate aim pursued - Protection of the confidentiality of personal information - the following record can be considered as a useful (effective) tool: the adequate and proportional extent to the legitimate aim.

G. Disclosure of information is determined by a court or by other legally binding decisions.

On this basis, the court has the right, for any lawful reason, to request the mediation participants to disclose the information revealed in the mediation process. This rule calls into question the high standard of the principle of confidentiality, as its wording is general. However, if we rely on international customary law mediation practice, courts should use a four-part test when evaluating the claim for the privilege of confidentiality, one of the main components of which - the damage caused to the parties as a result of the disclosure of communications must be greater than the benefits received as a result of the disclosure to the court.[56] Therefore, all judges should be aware that adhering to the principle of confidentiality in mediation is vital.

§ 6. Break of the duty of protection of confidentiality and its legal consequences
6.1. The essence of the break of confidentiality and the forms of expression (declaration)

Labor relations begin on the basis of an employment contract between the employee and the employer, which is based on equality and free will.[57] The danger of illegitimate break of the principle of confidentiality can be seen in the record of the Labor Code, according to which the Minister has the right to request from the mediator to submit a report on the dispute.  While all internal communications are under the shield of privacy, the employer in this case finds itself in a situation where its commercial secrets and its reputation are threatened. Business entities communicate and interact with each other, so it is essential for them not to disclose their commercial secrets and to be protected from publicity. Therefore, the Minister's authority to request a report is somewhat in conflict with Paragraph 9 of Article 63 of the Labor Code of Georgia, which protects the confidentiality of collective disputes and obliges the mediator not to disclose information that became known to him during the mediation process.[58] The mediator should try to identify the interests of the parties, the needs and make them perceptible to both parties, for this purpose separate meetings are held with the parties. One of the tasks of separate meetings may be to organize the making an offer, in particular, after a separate meeting, the mediator notifies the other party of the information or offer.[59] At this point, the internal confidentiality standard is at stake, as the mediator may inadvertently and unintentionally transfer strategic and key information of one party while sharing information with the other party. Giving false facts deliberately (intentionally) to the other party, of course, complicates the dispute and raises the question of whether false information is generally protected by mediation confidentiality or not? If we follow the general rule, all information in the mediation enjoys confidentiality, although there is an opinion on the ethical obligation that if the party is aware of the falsity of the information provided by the other party, this information is not protected by confidentiality.[60] Nevertheless, the disclosure of confidential information in the mediation process due to the disclosure of the disputing party's action and dishonesty cannot be considered as a legitimate basis for break (breach) of confidentiality under current national law.[61]

6.2. Legal consequences of break of confidentiality

For the mediation process to be successful, it is necessary for the parties to "open up" due to the informal nature of mediation, which allows the parties to speak freely about facts, interests, emotions and opportunities. [62] During mediation between business entities, both parties may disclose confidential and potentially threatening unfavorable information to them in the hope that this information will remain absolutely confidential. In such commercial disputes, where the dispute is over a large amount of money, it is important for both parties that third parties couldn't be informed about details of the mediation process, as disclosing certain information could severely damage their reputation and business relationships (current and future).[63] The direct addressee of the unfair outcome is the mediation professional community, whose mission is that people should see mediation as an indispensable, effective, and demanded means of resolving disputes.[64] Statements and offers protected by the Confidentiality Privilege during mediation should be processed in such a way that they shouldn't be disclosed, and in case of damage, should be reimbursed.[65] Ultimately, the legal consequence of a breach of confidentiality may be the possibility of compensation (redress) by civil proceedings. Breach of confidentiality can cause both moral and property damage. For example, as a result of disclosure of confidential information of party, if its business reputation is damaged, a party may seek redress (compensation/reimbursement).[66]  In some countries, breach of confidentiality leads to more serious consequences, such as imprisonment for up to 6 months and removal from the register of mediators. [67]

6.3. Reality and challenges

The high level of public trust in the mediator contributes to the development of mediation in commercial disputes.[68] However, when national law sets out a rich list of legitimate grounds for a break of confidentiality, the integration of mediation into commercial disputes is jeopardized. One of the grounds for the break of confidentiality - The obligation to disclose information by another court decision - is a general record. However, according to the principle of confidentiality, the court should only request the disclosure of information directly related to the case and be limited to the materials related to the case. Most importantly, the judge must be able to compare (appreciate) the harm caused by the breach of confidentiality with the benefit of the information presented in court. the limitation (specific proviso)  on disclosure to the authorized person or body of confidential information, means that disclosure of information may be done only adequately and proportionate to the legitimate aim. The legitimate aim - to protect the confidentiality of personal information - can be considered as the useful tool, as the definition of the principle of proportionality according to the practice of Georgian justice implies (means): the state should establish a fair balance, in the form that the protected value should exceed the interest of the protection of the limited right.[69]

Under national law, all mediators are required to inform the parties of the legitimate grounds for restricting confidentiality, although publicly held myths about the absolute immunity of mediation may harm the party, manifested by the party's misunderstanding of the information. The mediator must be sure that the mediation parties have made informed decisions.[70] It is also essential that Paragraph 2 of Article 10 of the Law of Georgia on Mediation obliges participants in mediation to maintain confidentiality. Fear of business entities about disclosement of commercial secrets to third parties during mediation, may be diminished by the existence of legitimate grounds for the break of the confidentiality and relative concepts (adequate and proportionate extent). Due to the above mentioned, the national law requires the maximum protection of disclosed information from a third party.

Thus, the principle of confidentiality does not enjoy absolute immunity, and due to the free space of mediation, besides legitimate restrictions, they may be breached as a result of factual circumstances not written in the legislation. Confidentiality may be waived by the parties based on a written agreement, which they certify by signing, and therefore the information disclosed to each other during the mediation process may be used as evidence in court.[71] Nevertheless, this can not be a reason for the parties to ask the mediator to submit records of this information in court. As the scope of the obligation to disclose information is not strictly defined in this context, the mediator should insure himself and destroy after completion of the mediation the materials obtained as a result of the communication. I think a higher standard of confidentiality will emerge by law if the mediator will be obliged to destroy the materials. Also, determination of the information received before the initiation of mediation or from public space as legitimate grounds for the break of confidentiality puts business entities operating in commercial relationships in an unfavorable position. Requesting public information is not a violation of the law, but it is interesting if the mediation process helped one party in the disclosure of the strategic important information of the other party  (meaning: What this information should have been and where it should have been found). the record that disclosure of confidential information to the authorized person or body may be done only adequately and proportionate to the legitimate aim can be considered as a useful tool. It should be noted that from 2013 to December 10, 2021, 422 cases were transferred to the Mediation Center of the Tbilisi City Court. According to the statistics of 2021, there are 28 legal disputes related to business disputes; Labor Law - 27 disputes; Also, 33 current loan and microfinance disputes are recorded in the mediation center.[72] The settlement rate is 60-70%, and disputes arising from microfinance, labor, commercial, and family relations have particularly successful results.[73]

Conclusion

Justice is the best way to maintain the balance of interests since mediation allows the parties to make a joint voluntary and desirable decision in terms of fairness seen from their perspective.[74] However, the different perceptions of justice by the parties, which may be associated with victory for any party using all methods, hurt the bona fide party (in good faith party) because it cannot use the information entrusted in the mediation process in court to substantiate own assumptions. Confidentiality is also a kind of hybrid in the legal-philosophical sense. Under national law, protection of information for an indefinite period reminds us of the category of absolute rights, however, the specifics of the relationship of the mediation and the accompanying process (allows individuals to demand from each other to protect information under the principle of confidentiality) are clearly relativistic.

On the one hand, Article 10 of the Law on Mediation allows the disputing parties to waive their confidentiality in writing, though on the other hand, the mediator's obligation how to act in this case is not provided by law. It is important to note the obligation to keep confidentiality for an indefinite period after mediation. In the mediation process, the parties may not be able to evaluate what information may become useless in the future and this in itself may produce problems in the area of confidentiality.  This case is directly related to the legitimate basis of the break of confidentiality, in particular, it will not be considered as a breach of confidentiality by the parties involved in mediation if the information is made accessible (disclosed) to the public by other means.

In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In my opinion, in the future, it would be better to add another paragraph to Article 63 of the Labor Code of Georgia, which will clearly define what kind of information/report the mediator is obliged to provide to the Minister of Labor, Health and Social Affairs. It should also be considered to what extent the information obtained during the mediation process should be reflected in the report, so as not to violate the principle of confidentiality. In addition, it is necessary to impose an obligation on the participants in mediation under Paragraph 2 of Article 10 of the Law of Georgia on Mediation (both during the mediation process and after its completion), which is so far only implied in the general rule of confidentiality.

It is also important to analyze three records:

1. A) a text recorded in the Code of Civil Procedure, according to which a mediator has no right to appear in court as a witness;


2. B) According to the first paragraph of Article 10 of the Law on Mediation, the parties may, by a written agreement, protect certain information on the principle of confidentiality or refuse it at all;


3. C) According to Paragraph 2 of Article 10 of the Law on Mediation, information protected by Article 10 may not be used in court.

Any information that the parties in writing agree to disclose will no longer be considered confidential information. This gives us reason to assume that this information is no longer subject to Article 10 of the Law on Mediation consequently, the use of this information in court will not be considered a breach of confidentiality. Moreover, there is a record in the Code of Civil Procedure that the court will not accept the information received from the mediation process as evidence unless the parties agree in writing about this matter.[75] However, since this is an assumption, it is better to mention in Paragraph 2 of Article 10 of the Law on Mediation that this rule applies to the information on the confidentiality or disclosure of which the parties have not agreed in an additional written form, although this rule or a different agreement between the parties does not oblige the mediator to disclose the information which he holds.

Ultimately one of the important functions of a mediator for the successful completion of mediation in business disputes is to focus on the interests of the parties and to be able to separate them from the positions of the parties. The mediator should be able to remove the emotional background in the business relationship and transform it into an interest-based mediation process to avoid the breach of the principle of confidentiality.

Bibliography

Georgian normative material

1. Civil Procedure Code of Georgia, 14/11/1997, <https://matsne.gov.ge/ka/document/view/29962?publication=149> [Last seen: 30 November, 2021]


2. Civil Code of Georgia, 26/06/1997, 786, <https://www.matsne.gov.ge/ka/document/view/31702?publication=115> [Last seen: 7 December, 2021]


3. Law of Georgia on Mediation, 18/09/2019, 4954-Iს, Article 10.


4. The Code of the Rights of the Child, 20/09/2019, 5004-Iს, Article 5.


5. Labour Code of Georgia, 17/12/2010, 4113-რს.


6. Constitutional Court of Georgia II-60, №3 / 1/512 Judgment in the case of "Danish citizen Heike Kronkvist v. Parliament of Georgia", 26/06/2012.


7. Explanatory card on the draft law of Georgia on Mediation, registration N07-2 / 319/9, 2017, 9.


8. Constitutional Court of Georgia II-28, №3 / 1/752 Decision on the case “(NNLE) " Green Alternative "v. Parliament of Georgia", 14/12/2018.


9. Constitutional Court of Georgia I Panel, №1 / 4 / 693,857 Judgment in the case of NNLE “Media Development Fund” and NNLE “Institute for Development of Freedom of Information” against the Parliament of Georgia, 7/06/2019, https://constcourt.ge/ka/judicial-acts?legal=1268. [Last seen: 7 December, 2021]


10. Tbilisi City Court, Response to Citizen Irina Batiashvili, N2-4118/4363203, 13/12/2021.


11. Tbilisi City Court, N2-4118 / 4363203, 13/12/2021.

Georgian literature

1. Adeishvili Q., The Role of the Confidentiality in the Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, special edition, 2018-2019, 54, 65.


2. Batiashvili I., The right to life - the white garment of the Constitution, Faculty of Law and International Relations of Georgian Technical University Journal, “Lawyer”, N9, 2020, 95.


3. Beridze Q. Divorce, Child and Family Mediation, The Importance of Mediation and Development Perspectives in Georgia, Tb., Ilia state University, 2021, 74.


4. Beradze S., Specificity of Confidentiality Protection in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, Winning articles in the National Competition for Mediation Articles,2017, 50.


5. Bichia M., Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning, Journal "Law and World", 6(2), 2020, 194-196.


6. Bichia M.,The Georgian Model of Compensation of Non-property Damage for Violating Personal Rights in Line with European Standards, TSU “Journal of Law”, N1, 2017, 16, 23.


7. Bichia M., Bichia M.,Methodological Issues of Public Legal Relations, TSU “Journal of Law”, N1-2, თბ., 2010, 82, 84, 85-86.


8. Gurieli A., Judge as a mediator, Journal "Law and World", Tb., N11, 2019, 47.


9. Tvauri R., Standard of Binding by Confidentiality Principle in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, 2015, 27, 28, 31.


10. Todua M., Willems H., Law of Obligation, Tb., Georgian young lawyers, 2006, 7-9.


11. Kalandadze D.,The Principle of the Confidentiality in the Mediation Process and Georgian Legislative Reality, Journal “Alternative Dispute Resolution-Yearbook“, special edition, 2018-2019, 36, 37.


12. Steven M. Austermiller, Delaine R. Swenson, Alternative dispute resolution Georgia: A textbook of essential concepts, , 2014, 150, 162-163.


13. Supreme Court of Georgia, Practical Recommendations for Judges of Common Courts on Civil Procedure Law, Tb., 2010, 14.


14. Commentary on the Civil Code, Book I, Property Law, Editor-in-Chief: Chanturia L., Tb., 2017, 42, 54-55.


15. Chanturia L., General Part of Civil Law, Tb., Law, 2011, 4-5.


16. Takashvili S., The Importance of Mediation as a Form of Alternative Dispute Resolution in the Process of Collective Labor Dispute Discussion and Settlement, Journal “Alternative Dispute Resolution-Yearbook“, 2014,


17. Qatamadze D., Stress identified in the mediation process and ways to reduce it, The Importance of Mediation and Development Perspectives in Georgia, Tb., Ilia state University, 2021, 68-69.


18. Kandashvili I., Judicial and Non-Judicial Forms of Alternative Dispute Resolution on the Example of Mediation in Georgia, , Publishing world of lawyers, 2019, 191-192, 203-204, 103.


19. Chitashvili N., Fair Settlement as Basis for Ethical Integrity of MediationJ ournal “Alternative Dispute Resolution-Yearbook“, special edition, 2016, 13, 21.


20. Tsuladze A., Comparative Analysis of Georgian Judicial Mediation, Tb., Publishing world of lawyers, 2017, 28,176-277, 180-183, 84, 86-88, 89, 51-52, 138-140, 161, 142.


21. Kharaishvili A., Georgian Business Law Guide and Practical Exercises,, 2019, 95.

Foreign language normative material

1. United Nations General Assembly, Resolution on Model law on international commercial mediation and international settlement agreements resulting from medation of the united nations commission on international law, Seventy-third session, Distr: General, 3 January 2019, A/RES/73/199. <https://digitallibrary.un.org/record/1659029?ln=en#record-files-collapse-header>, [Last seen: 28 November, 2021]. (In English)


2. Resolution of United Nations General Assembly, Model law on international commercial conciliation of the united nations commission on international trade law, Annex model law on international commercial conciliation of the united nations commission on international trade law, fifty-seventh session, distr: General, 24 January 2003, A/RES/57/18, < https://undocs.org/A/RES/57/18>, [Last seen: 28 November, 2021]. (In English)


3. United Nations Office at Vienna, A guide to UNCITRAL (basic facts about the United Nations Commission on International Trade Law), English, Publishing and Library Section, January 2013. (In English)


4. Erskine White et al v. Susan A. Holton, dba Gabriel Ames Associates, Superior Court No. 927915E, Oct.4, 1993. (In English)

Foreign language literature

1. Brooker P., Mediation law journey “through institutionalism to juridification”, routledge, Britain, 2013, 255. (In English)


2. Burge K., Boston Globe, 2002, <https://archive.boston.com/globe/spotlight/abuse/stories2/080602_chancellor.htm> [Last seen: 8 December, 2021]. (In English)


3. Chan Ch. H., Peter Ch., Mediation Operations for Resolving Commercial Disputes in China, Journal "Revista Chilena de Derecho", Vol. 41, N1, 2014, 153. (In English)


4. Dursun A., The principle of confidentiality in mediation and the role of confidentiality in commercial mediation, Afro Eurasian studies journal, Vol. 6, Issue 1&2, 2017, (In English)


5. Freedman L. Prigoffs M., Confidentiality in Mediation: The Need for Protection, Journal on dispute resolution, Vol 2:1, 1986, 37-38. (In English)


6. Gibson K., Confidentiality in mediation: a moral reassessment, Journal of dispute resolution, Vol. 1992, N1, Art.5, 29. (In English)


7. Hadiati M., Tampi M. M., The Benefit Values of Settling Business Disputes by Means of Mediation in Indonesia, In: “Proceedings of the Arbitration and Alternative Dispute Resolution International Conference (ADRIC 2019)”, Atlantis Press, 2020, 17-19. (In English)


8. Holzberg R., 10 tips for a successful mediation, Connecticut law tribune, Pullman Comley, 2013, 1-4. (In English)


9. Jerome B., Mediation confidentiality: who, what, where, when, how?, Massachusetts dispute resolution service, <https://www.mdrs.com/faqs/mdrs-articles/mediation-confidentiality-who-what-where-when-how/>, [Last seen: 8 December, 2021]. (In English)


10. Kerwin J., "How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute. How does mediation work in a lawsuit or other dispute?, the Program on Negotiation at Harvard Law School, 06/12/2021., <https://www.pon.harvard.edu/daily/mediation/navigating-the-mediation-process/>, [Last seen: 7 December, 2021] (In English)


11. Oberman S., Confidentiality in Mediation: an application of the right to privacy, Ohio state journal on dispute resolution, Vol 27:3, 2012, 541, 550-551. (In English)


12. Office of the state courts administrator, Supreme Court of Florida, the Florida dispute resolution center’s adr resource handbook, 2020, 25. (In English)


13. Tetunic L. F., Act Deux: Confidentiality Adter the Florida Mediation Confidentiality and Privacy Act, „Nova Law Review“, Volume 36, Issue1, 2011, 83. (In English)


14. Brown K., Confidentiality in mediation: status and implications, Journal of dispute resolution, Vol. 1991,Iss. 2, 319, 315. (In English)


15. Alexander N., Mediation: the new normal?, 4.12. 2020, (In English)


16. State v. Castellano, 460 So. 2d 480 (Fla. Dist. Ct. App. 1984), < https://casetext.com/case/state-v-castellano>. [Last seen: 7 December, 2021] (In English)

Footnotes

[1]  Kerwin J., (2021), "How Mediation Works When Both Parties Agree They Need Help Resolving the Dispute. How does mediation work in a lawsuit or other dispute?, the Program on Negotiation at Harvard Law School, <https://www.pon.harvard.edu/daily/mediation/navigating-the-mediation-process/> [Last seen: 07 December, 2021]

[2] Hadiati M., Tampi M. M., (2020), The Benefit Values of Settling Business Disputes by Means of Mediation in Indonesia, In: “Proceedings of the Arbitration and Alternative Dispute Resolution International Conference (ADRIC 2019)”, Atlantis Press, 17-19.

[3] Chanturia L., (2011), General Part of Civil Law, Tb., Law, 4-5.

[4] Bichia M., (2017) The Georgian Model of Compensation of Non-property Damage for Violating Personal Rights in Line with European Standards, TSU “Journal of Law”, N1, 16.

[5] Bichia M., (2017), The Georgian Model of Compensation of Non-property Damage for Violating Personal Rights in Line with European Standards, TSU “Journal of Law”, N1, 23.

[6] Beridze Q. Divorce, (2021) Child and Family Mediation, Tb., The Importance of Mediation and Development Perspectives in Georgia, Tb., Ilia state University, 74.

[7] Qatamadze D., (2021), Stress identified in the mediation process and ways to reduce it, Tb., The Importance of Mediation and Development Perspectives in Georgia, Tb., Ilia state University, 68-69.

[8] Kharaishvili A.,( 2019), Georgian Business Law Guide and Practical Exercises, Tb., 95.

[9] Freedman L. Prigoffs M., (1986), Confidentiality in Mediation: The Need for Protection, Journal on dispute resolution, Vol 2:1, 37-38.

[10] Supreme Court of Georgia, (2010), Practical Recommendations for Judges of Common Courts on Civil Procedure Law, Tb., 14.

[11] Todua M., Willems H., (2006), Law of obligation, Tb., Georgian young lawyers, 7-9.

[12] Kharaishvili A., (2019), Georgian Business Law Guide and Practical Exercises, Tb., 95.

[13] Civil Code of Georgia, 26/06/1997, 786, V Book, I Section, Chapter 3, <https://www.matsne.gov.ge/ka/document/view/31702?publication=115> [Last seen: 7 December, 2021]

[14] Qatamadze D., (2021), Stress identified in the mediation process and ways to reduce it, The Importance of Mediation and Development Perspectives in Georgia, Tb., 68-69.

[15] Oberman S., (2012), Confidentiality in Mediation: an application of the right to privacy, Ohio state journal on dispute resolution, Vol 27:3, 541.

[16] Oberman S., (2012), Confidentiality in Mediation: an application of the right to privacy, Ohio state journal on dispute resolution, Vol 27:3, 550-551

[17]   Explanatory card on the draft law of Georgia on Mediation, registration N07-2 / 319/9, 2017, 9.

[18] Steven M. Austermiller, Delaine R. Swenson, (2014), Alternative dispute resolution Georgia: A textbook of essential concepts, Meridiani, Tb., 150.

[19] Erskine White et al v. Susan A. HOLTON, dba Gabriel Ames Associates, Superior Court No. 927915E, Oct.4, 1993. 

[20] Kandashvili I., (2019), Judicial and Non-Judicial Forms of Alternative Dispute Resolution on the Example of Mediation in Georgia, Tb., Publishing world of lawyers, 191-192.

[21] Ibid, 203-204.

[22] Gurieli A., (2019), Judge as a mediator, Journal "Law and World", N11, 47.

[23] Steven M. Austermiller, Delaine R. Swenson, (2014), Alternative dispute resolution Georgia: A textbook of essential concepts, Meridiani, Tb., 162-163.

[24] Tvauri R., (2015), Standard of Binding by Confidentiality Principle in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, 31.

[25] Chan Ch. H., Peter Ch., (2014), Mediation Operations for Resolving Commercial Disputes in China, Journal "Revista Chilena de Derecho", Vol. 41, N1, 153.

[26] Holzberg R., (2013), 10 tips for a successful mediation, Connecticut law tribune, Pullman&Comley, 1-4.

[27]Alexander N., (2020), Mediation: the new normal?, 245, <http://dx.doi.org/10.2139/ssrn.3742561>.

[28] Rooney K., (2021), International Bar association, The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year, introduction, <https://www.ibanet.org/global-impact-covid-19-pandemic-dispute-resolution> [Last seen: 7 December, 2021]

[29] Rooney K., International Bar association, (2021), The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year, introduction, <https://www.ibanet.org/global-impact-covid-19-pandemic-dispute-resolution> [Last seen: 7 December, 2021]

[30] Tsuladze A., (2017), Comparative Analysis of Georgian Judicial Mediation, Tb., Publishing world of lawyers, 51-52.

[31] United Nations Office at Vienna, A guide to UNCITRAL (basic facts about the United Nations Commission on International Trade Law), English, Publishing and Library Section, January 2013.

[32]United Nations General Assembly, Resolution on Model law on international commercial mediation and international settlement agreements resulting from medation of the united nations commission on international law, Seventy-third session, Distr: General, 3 January 2019, A/RES/73/199.

[33] Resolution of United Nations General Assembly, Model law on international commercial conciliation of the united nations commission on international trade law, Annex model law on international commercial conciliation of the united nations commission on international trade law, fifty-seventh session, distr: General, 24 January 2003, A/RES/57/18, article 6. <https://undocs.org/A/RES/57/18>, [Last seen: 28 November, 2021].

[34] Resolution of United Nations General Assembly, Model law on international commercial conciliation of the united nations commission on international trade law, Annex model law on international commercial conciliation of the united nations commission on international trade law, fifty-seventh session, distr: General, 24 January 2003, A/RES/57/18, article 9.

[35] Commentary on the Civil Code, Book I, Property Law, Editor-in-Chief: Chanturia L., (2017), Tb., 42, 54-55.

[36] Bichia M., Bichia M.,Methodological Issues of  Public Legal Relations, (2010), TSU “Journal of Law”, N1-2, 85-86.

[37] Editor-in-Chief: Chanturia L., Commentary on the Civil Code, Book I, Property Law, (2017), Tb., 42, 54-55.

[38] Batiashvili I.,(2020), The right to life - the white garment of the Constitution, Faculty of Law and International Relations of Georgian Technical University Journal, “Lawyer”, N9, 95.

[39] Gibson K., (1992), Confidentiality in mediation: a moral reassessment, Journal of dispute resolution, Vol., N1, Art.5, 29.

[40] Constitutional Court of Georgia I Panel, №1 / 4 / 693,857 Judgment in the case of NNLE “Media Development Fund” and NNLE “Institute for Development of Freedom of Information” against the Parliament of Georgia, 7/06/2019, <https://constcourt.ge/ka/judicial-acts?legal=1268> [Last seen: 7 December, 2021]

[41] Tsuladze A., (2017), Comparative Analysis of Georgian Judicial Mediation, Tb., Publishing world of lawyers,142.

[42] The Code of the Rights of the Child, 20/09/2019, 5004-Iს, Article 5.

[43] Office of the state courts administrator, Supreme Court of Florida, the Florida dispute resolution center’s adr resource handbook, 2020, 25.

[44] Kandashvili I., (2019), Judicial and Non-Judicial Forms of Alternative Dispute Resolution on the Example of Mediation in Georgia Tb., Publishing world of lawyers, 103.

[45] Adeishvili Q., (2018-2019), The Role of the Confidentiality in the Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, special edition, 54.

[46] Civil Procedure Code of Georgia, 14/11/1997, 1106, Book I, Section III, 141 Article

[47] Law of Georgia on Mediation, 18/09/2019, 4954-Iს, Article 10.

[48] Burge K., Boston Globe, 2002, <https://archive.boston.com/globe/spotlight/abuse/stories2/080602_chancellor.htm> [Last seen: 8 December, 2021].

[49] Jerome B., Mediation confidentiality: who, what, where, when, how?, Massachusetts dispute resolution service, <https://www.mdrs.com/faqs/mdrs-articles/mediation-confidentiality-who-what-where-when-how/> [Last seen: 8 December, 2021].

[50] Dursun A., (2017), The principle of confidentiality in mediation and the role of confidentiality in commercial mediation, Afro Eurasian studies journal, Vol. 6, Issue 1&2, 23.

[51] State v. Castellano, 460 So. 2d 480 (Fla. Dist. Ct. App. 1984), < https://casetext.com/case/state-v-castellano>. [Last seen: 7 December, 2021]

[52] Tetunic L. F., (2011),  Act Deux: Confidentiality Adter the Florida Mediation Confidentiality and Privacy Act, „Nova Law Review“, Volume 36, Issue1, 83. <https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1061&context=nlr> [Last seen: 7 December, 2021]

[53] Beradze S., (2017) Specificity of Confidentiality Protection in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, Winning articles in the National Competition for Mediation Articles, 50.

[54] Bichia M., (2020), Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning, Journal "Law and World", 6(2), 194-196. https://doi.org/10.36475/6.2.15

[55] Constitutional Court of Georgia II-60, №3 / 1/512 Judgment in the case of "Danish citizen Heike Kronkvist v. Parliament of Georgia", 26/06/2012.

[56] Brown K., (1991), Confidentiality in mediation: status and implications, Journal of dispute resolution, Vol, Iss. 2, 315.

[57]Takashvili S., (2014), The Importance of Mediation as a Form of Alternative Dispute Resolution in the Process of Collective Labor Dispute Discussion and Settlement, Journal “Alternative Dispute Resolution-Yearbook“,  48.

[58] Labour Code of Georgia, 17/12/2010, 4113-რს.

[59] Tvauri R., (2015), Standard of Binding by Confidentiality Principle in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, 27.

[60] Kalandadze D., (2018-2019), The Principle of the Confidentiality in the Mediation Process and Georgian Legislative Reality, Journal “Alternative Dispute Resolution-Yearbook“, special edition, 36.

[61] Ibid., 28.

[62] Tvauri R., (2015), Standard of Binding by Confidentiality Principle in Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, 26.

[63] Bichia M., (2020), Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning, Journal "Law and World", 6(2), 194-196. https://doi.org/10.36475/6.2.15

[64] Chitashvili N., (2016), Fair Settlement as Basis for Ethical Integrity of MediationJ ournal “Alternative Dispute Resolution-Yearbook“, special edition, 13.

[65] Bichia M., (2020), Legal Regime of Confidentiality Protection in the Mediation Process and Its Meaning, Journal "Law and World", 6(2), 193. https://doi.org/10.36475/6.2.15

[66] Civil Code of Georgia, 26/06/1997, 786, Book I, Section I, Chapter I, Article 18.

[67] Dursun A., (2017), The principle of confidentiality in mediation and the role of confidentiality in commercial mediation, Afro Eurasian studies journal, Vol. 6, Issue 1&2, 23.

[68] Chitashvili N., (2016), Fair Settlement as Basis for Ethical Integrity of MediationJ ournal “Alternative Dispute Resolution-Yearbook“, special edition, 21.

[69] Constitutional Court of Georgia II-28, №3 / 1/752 Decision on the case “(NNLE) " Green Alternative "v. Parliament of Georgia", 14/12/2018.

[70] Brooker P., (2013), Mediation law journey “through institutionalism to juridification”, routledge, Britain, 255.

[71] Adeishvili Q., (2018-2019), The Role of the Confidentiality in the Mediation Process, Journal “Alternative Dispute Resolution-Yearbook“, special edition, 65.

[72] Tbilisi City Court, N2-4118 / 4363203, 13/12/2021.

[73] Ibid.

[74] Chitashvili N., (2016), Fair Settlement as Basis for Ethical Integrity of MediationJ ournal “Alternative Dispute Resolution-Yearbook“, special edition, 9.

[75] Civil Procedure Code of Georgia, 14/11/1997, Book I, Section III, Article 104.