Confidentiality is an essential part of any successful mediation, but it is possible that a person participating in a mediation might waive their right to confidentiality, even if they do not mean to do so. This risk explored in the case of Missingham v Shamin  NSWSC 288 (21 March 2012)
Mr Missingham was the President of the Australian Kung-Fu (Wu-Shu) Federation. He issued defamation proceedings against Dr Koroleva who was a former member of the Federation.
Mr Missingham and Dr Koroleva each brought their lawyers and a support person to their mediation. Dr Koroleva’s support person was her husband, Mr Shamin. The dispute was settled and the parties and Mr Shamin signed a Deed agreeing to keep the settlement confidential. The deed also specified the form of public statement which the parties were entitled to make following the execution of the deed.
Shortly after the mediation, the defamation proceedings were mentioned in Court so a Notice of Discontinuance could be filed. There was a statement in open court that the proceedings had settled at mediation and that “the court was informed about arrangements in respect of costs orders”.
On the same date, a comment about the case was posted on a website forum called “BLITZ Australasian Arts Magazine” by a contributor identified only as “ffsguy”.
Although the Court never determined who “ffsguy” was, Mr Shamin apparently believed that Mr Missingham was responsible for the post. In response, Mr Shamin an extract from a letter about the case on the same website.
Mr Missingham’s solicitors demanded that Mr Shamin’s post be taken down. After receiving that demand, Mr Shamin took down the extract but replaced it with the whole letter. Mr Missingham applied to the Court.
Mr Shamin raised four arguments Three of them were quickly dismissed, but the Court considered his fourth argument, which was essentially that
- details of the settlement had been referred to in Court by Justice Brereton when he gave leave to file the Notice of Discontinuance,
- Justice Brereton’s judgment was posted n the Court’s website
- Mr Missingham had not applied for a suppression order
- Therefore Mr Missingham had waived his right to confidentiality.
The Court held that failing to seek a suppression order did not mean that Mr Missingham had waived his right to confidentiality, but did so on the grounds that a suppression order would have been hard to obtain under the relevant NSW legislation. This suggests that in different circumstances, a party whose confidential information is published through no fault of their own may be found to have waived their rights by failing to seek a suppression order.
The Court also found that:
- publication of details of the settlement on the Court’s website was a limited publication.
- There was no evidence that it has been accessed on a widespread basis since it was posted.
- Mr Missingham’s right to confidentiality should not be lost due to a limited publication in which he played no part.
The Court therefore:
- Granted an injunction suppressing contents of the Deed.
- Awarded damages of $10 for breach of confidentiality.
- Awarded costs on an indemnity basis.
In summary, if you want to keep a settlement confidential, the best way to protect that confidentiality to include this as part of any written settlement agreement. Even if you do this, you need to act immediately if there is any breach of that confidentiality. Once the information is in the public domain the Court will probably not grant an injunction, and it may be difficult to recover any significant amount in damages.