/ Legal Aid NSW
Family Dispute Resolution
PO Box K847
Haymarket NSW 1238
Organiser:
Phone: 02 9219 Fax: 02 9219 5542

Confidentiality Agreement

Care and Protection

File Reference:

Party Name:

  1. This is a Care and Protection mediation to assist people to reach an agreement about a dispute without the need for a court to make a decision.
  1. I will do my best to use this mediation as a genuine attempt to reach agreement.
  1. I agree that all stages of this mediation process are covered by this confidentiality agreement.
  1. I understand it is very important that we all feel we can talk freely in this mediation and I agree that:

(a)what is said or done in this mediation will always be private and confidential;

(b)I will not disclose to anyone, or publish on social media, anything that is said or done in this mediation; and

(c)I will not disclose any information that I receive during this mediation unless I consider it necessary:

(i)to prevent or minimise the danger of injury to a person or damage to property, or

(ii)for the purpose of making a referral to a relevant body, about the alleged professional misconduct of a mediator or practitioner participating in a mediation.

  1. I agree that when I use the words “anything said or done” and “information that I receive” I am including:

(a)anything said or done in the mediation; and

(b)the willingness of anyone in the mediation to consider any settlement proposal; and

(c)any information prepared for the mediation.

  1. I will not seek to require the mediator or any employee of Legal Aid NSW to give evidence in any legal proceedings about anything concerning this mediation.
  1. I understand that the mediator may be required or authorised to disclose things said or done, or information received, during the mediation in order to:

a)make a report arising from any information which gives them reasonable grounds to suspect a child or young person is at risk of significant harm;

b)protect the life or health of any person or protect property, or

c)disclose information that the party who provided the information agrees to, or

d)disclose information that relates to some illegal act or to improper conduct by a lawyer or other professional person participating in the mediation, or

e)permit the mediator to obey the law or any court order.

  1. I agree that the mediator may:

(a)write a report for Legal Aid NSW to:

i)enable it to make decisions based on merit about future funding for a party, or

ii)investigate a complaint, or

iii)conduct supervision of the mediator; and

(b)provide information to Legal Aid NSW so that data (excluding your name and any other information which may identify you or any other party to the mediation), may be collected for research and evaluation that Legal Aid NSW and FACS may conduct.

NOTE

I have read the attached Alternative Dispute Resolution Confidentiality Fact Sheet and I accept its contents

Your signature / Your role / Signature of witness / Date

Alternative Dispute Resolution

Confidentiality Fact Sheet

What is confidentiality?

Section 244C of the Children and Young Persons (Care and Protection) Act 1998 sets out the law relating to the confidentiality of information disclosed in Alternative Dispute Resolution (ADR). Section 244C states that anything said or done or any admission made during the process must not be disclosed to any other person.

This means that any information you give as part of an ADR process must not be disclosed by anyone who was at the ADR conference.

It also means you must not disclose any information given to you during the ADR conference process.

However, you need to be aware that there are exceptions to this rule.

Why is confidentiality important?

ADR is a process where a person helps parties to resolve the issues between them, without taking sides.

ADR works best if everyone feels that they can have an open and honest discussion about what actionshould be taken in the best interests of a child or young person.

Everyone who participates in an ADR process can expect that information they disclose during the process will remain private and confidential.

Who does confidentiality apply to?

Confidentiality applies to any person who conducts or participates in any ADR process. This may include:

• Parents and their lawyer (if they have one)

• The child’s lawyer

• Family and Community Services Managers and Caseworkers

• NGO Managers and Caseworkers

• The lawyer for Community Services

• Any other person who is a party to the proceedings and their lawyer (if they have one)

• Support persons

When does it apply?

The confidentiality rules apply when you attend any ADR process, including:

• Dispute Resolution Conference

• Family Group Conference

• External mediation (for example, mediation to resolve contact disputes)

• Aboriginal Care Circle

The confidentiality rules also apply to documents that are prepared for the purpose of the ADR process.

Exceptions -when can confidential information be disclosed?

A person conducting the ADR process may disclose information if:

The person who gave the information agrees

They have reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to property

They have reasonable grounds to suspect that a child or young person is at risk of significant harm asa result of obtaining the information as part of the ADR process

Any other law requires them to disclose the information.

Any person participating in ADR may disclose information if:

They have reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to property

Any person conducting or participating in ADR may disclose information if:

• The person conducting the ADR process; or

• A legal practitioner participating in the ADR process is being referred for professional misconduct.

When can information be used in court?

Section 244B(4) of the Children and Young Person’s (Care and Protection) Act 1998 states that information disclosed during any ADR process cannot be used as evidence in court unless the persons participating in the ADR have agreed to it being used.

Section 244B(4) also states that any document prepared for, or during, or as a result of the ADR processcannot be used as evidence in court unless the persons named or identified in the document have agreed to it being used.

Other limits on how confidentiality works

You should also be aware that although another party may not be able to use what you said at the ADR

conference in court it does not stop them from making further inquiries as a result of what you have said or done at the conference.

Further information:

It is important that you understand the meaning of confidentiality and the effect of disclosing information.

Even if you do not have a lawyer, you should obtain legal advice about the effect of and consequences ofdisclosing information.

Places where you can get legal advice include:

• Legal Aid[ provide legal advice and help at court and can be contacted on 1800 551 589;

• Aboriginal Legal Service[ provide legal advice and help at court to Aboriginal and Torres Strait Islander people and can be contacted on 1800 733 233;

•LawAccess[ is a free government telephone service that provides legal information, advice and referrals for people who have a legal problem in NSW and can be contacted on 1300 888 529; or

• Search the Law Society database[ for legal firms and solicitors in your area.