While every mediation is a confidential process between both parties, in a business-to-business context it is particularly interesting to mention „shuttle mediation“. This can be a very effective way to discuss a dispute in a highly confidential manner because „shuttle mediation“ means that the mediator will have several private meetings with only one party at a time – but of course only, if both parties agree to this type of mediation. Topics discussed in such private meetings are kept completely confidential, unless the respective party expressly agrees that the mediator can share certain information also with the other party. This might help in particular the lawyers of each party to find a sustainable solution step by step, without the risk of immediately lying open their full legal strategy for the dispute in a joint meeting, in front of the other party´s lawyer.
It is best practice to regulate all confidentiality aspects in a mediation agreement between the parties and the mediator before the actual mediation starts. This might also help to ensure that information shared during the mediation cannot be used later in a potential civil court proceeding and that the mediator cannot appear as witness in such a potential litigation. It is recommendable not to forget this aspect of concluding a solid mediation agreement, because not all mediations are successful and some might go into litigation afterwards.