Bad Faith in Commercial Dispute Resolution: A Cross Jurisdictional Comparison
This essay agrees with the idea that bad faith caused by judicial pressure and individual motivations creates a difficult balance between establishing the allegation and maintaining confidentiality. The essay analyses the balance in six steps. First it will look at the role of confidentiality and its function in the context of mediations. Second it will look at Unilever to show a general approach to confidentiality. Third it will look at the motivations perpetuating bad faith and determine the meaning of bad faith. Fourth it will show how confidentiality has created a cloak of privilege for parties to act in bad faith and show how the law has developed accordingly. Fifth it will place conditional and absolute confidentiality side-by-side to determine if there is any way to rectify the two. Finally the essay will make a conclusion regarding this rectification.