Breaching mediation confidentiality may come at a cost for Colin Craig

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OPINION

Here we go again. Former Conservative Party leader Colin Craig is in the news saying that, if the confidentiality agreement blanketing the details of his relationship – whatever it might have been – with his former press secretary were to be lifted, people would know "the real story” of what may or may not have happened between them.

Perhaps not surprisingly, his former press secretary, Rachel Macgregor, seems to be taking a different view. She does say, however, she has been somewhat hamstrung in what she can say by the existence of the confidentiality agreement arrived at through mediation and Mr Craig's seeming refusal to agree that he will not sue if she does the same thing he has done, breach the agreement.

In the meantime, legal observers and media commentators have been enjoying a busy week holding court on who stands to win or lose the most by breaking, or being seen to break, the confidentiality agreement in question.

Still, if there is a something of a bright side to be found, it may be in the renewed attention the drama has given to the vital role of confidential mediation in this and scores of other similar workplace-related cases that take place in New Zealand every day. 

Whatever the shortcomings in the latest case, early mediation remains the best, most effective resolution tool for all kinds of disputes.  

In this case it arose as a consequence of an employment relationship, which somehow became subject to mediation managed by the Human Rights Commission.

Mediation is quick. It is usually inexpensive compared to the alternatives and it allows all issues to be dealt with. Mediation also has the greatest ability to lessen the damage to relationships and thus allows for the best chance of restoring those relationships in the most positive way possible.

Mediation can be used before parties get into any kind of formal dispute proceedings and its methods can be used to structure business in a way that lessens the likelihood of getting into that arena. In New Zealand mediation is often a legally required step before access to a court or tribunal.

But confidentiality is key to mediation. It allows protagonists to say what they want, without fearing the repercussions either in the public domain, or if the mediation doesn't work and the matter escalates to a court or tribunal. Without this protection, many cases just would not settle.

Mr Craig says in his defence that, although he breached confidentiality, he was entitled to do that to protect his good name and he limited the information he gave to do so. In effect he selectively abided by the agreement, as was good for him.

Public figures seem to be on a roll, thinking that agreements they sign do not have to bind them but do bind their opponent. It was just last year of course that former CERA boss Roger Sutton, breached confidentiality of an agreement he had with a former employee, as he struggled to clear his name regarding a sexual harassment case.  Sound familiar?

Clearly, though, what happened in the recent saga went many steps too far – even if nobody involved looks likely to stand to lose the kind of money now being looked at by the actor Mel Gibson’s former partner, Oksana Grigorieva.

Earlier last year, Grigorieva was forced to pay back $US375,000 of a settlement she received from Gibson after she violated the terms of a confidentiality agreement by talking about their relationship on a radio show. 

If the Gibson case is any guide, the near en masse resignation of the Conservative Party board may be the least of Mr Craig's problems. Mr Craig may yet pay a price, too, for his own handling of the confidentiality agreement at the heart of the Conservative Party opera. For the rest of us, though, he has offered a useful reminder on how mediation ought to work.

Deborah Hart is executive director of the Arbitrators’ and Mediators’ Institute of New Zealand

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