Mediation is confidential: using information from mediation can prove costly for employers

Mediation is a commonly used method of dispute resolution in employment law, particularly in workplace conflicts. Under the guidance of a mediator, parties explore whether a solution can be reached without court intervention. To create accommodate this process, confidentiality is key. Parties therefore almost always enter into a mediation agreement containing a confidentiality clause, which provides that everything discussed during mediation remains confidential.

In the judgment of the Limburg Subdistrict Court of 3 June 2026 (ECLI:NL:RBLIM:2026:5404), the question was how confidentiality should be applied in termination proceedings and to what extent information from mediation may be used to support a ground for dismissal.

Background to the dispute

The employee had been employed by the Custodial Institutions Agency (DJI) as a prison security officer since 2001. From 2017 onwards, he no longer worked night shifts on medical grounds. Following a lengthy period of incapacity for work, a dispute arose regarding reintegration and whether a return to the employee’s own position was possible.

As the parties were unable to reach an agreement, mediation was initiated. That process did not result in a solution. DJI subsequently requested the Subdistrict Court to terminate the employment agreement on the grounds of a disrupted employment relationship.

Ground for termination and the role of mediation

For termination on the ground of a disrupted employment relationship, there must be such a serious and lasting disruption that the employer cannot reasonably be expected to continue the employment agreement. When substantiating such a request, it is important that the court assesses the disruption on the basis of objective facts and circumstances.

In this case, however, DJI also argued that the employee’s conduct during mediation had contributed to the disruption of the employment relationship. In support of this argument, DJI referred to statements and conduct that allegedly occurred during the mediation.

The Subdistrict Court was clear about the confidential nature of that information. Mediation is strictly confidential, and that confidentiality was contractually laid down in the mediation agreement. This means that what is discussed or occurs during mediation may, in principle, not be used to substantiate a legal position in proceedings.

By nevertheless referring to the course and content of the mediation, DJI breached that confidentiality. The court qualified this as a serious shortcoming in DJI’s procedural conduct, as it undermined a fundamental principle of mediation.

Consequences for the employer

Although the employment agreement was ultimately terminated on the basis of a lasting disruption of the employment relationship, the breakdown of trust was largely attributable to the employer.

The Subdistrict Court held that DJI had acted in a seriously culpable manner. In reaching that conclusion, the court took into account not only the course of the reintegration process, but also the use of confidential mediation information in the proceedings, in breach of the agreed confidentiality.

This resulted in the award of fair compensation to the employee of EUR 48,000 gross, in addition to the statutory transition payment.

Practical points for employers

This judgment underlines that the confidentiality of mediation is strictly enforced. In legal proceedings, employers should exercise the utmost caution when referring to the course or content of mediation.

The judgment also highlights an important practical point: a request for termination based on a disrupted employment relationship must be carefully substantiated with objective facts and circumstances. If reliance is placed, even partly, on conduct during mediation, there is a risk that the court will disregard that information and will also take it into account when assessing who is responsible for the disruption. This may, in turn, affect whether the employer’s conduct is considered seriously culpable and whether fair compensation is awarded.

Mediation can therefore be an effective instrument for guiding employment conflicts towards a solution, but it requires a strict separation between confidential discussions and the legal substantiation used in proceedings. In practice, that separation often determines how the court ultimately assesses the relationship between the parties.

Do you have questions about mediation or about substantiating a disrupted employment relationship? We would be happy to assist.