NDAs in mediation settlements: confidentiality, whistleblowing and regulatory complaints

Confidentiality can help parties resolve a difficult dispute. It can protect commercial information, personal privacy and agreed financial terms. But a settlement agreement cannot safely promise complete silence about wrongdoing. Mediators need to recognise the limits, especially in workplace disputes and professional negligence claims.

Renewed public debate about NDAs makes this a timely issue. The practical question at mediation is what a proposed clause actually prevents someone from doing, whatever its heading.

A confidentiality clause has legal limits

An NDA may be a standalone document or a few lines within a settlement agreement. Non-disparagement promises, notification requirements and repayment provisions may also restrict disclosure in practice.

A clause can be ineffective to the extent that it conflicts with statutory protection without necessarily invalidating the whole settlement. The effect on the remaining agreement depends on the applicable law and drafting. Parties should obtain advice before assuming either that every term fails or that every disclosure is permitted.

Protected whistleblowing cannot be signed away

Section 43J of the Employment Rights Act 1996 makes contractual restrictions void insofar as they prevent a worker making a protected disclosure. It expressly covers agreements settling proceedings.

Protection is subject to statutory conditions. These include a reasonable belief that the disclosure is in the public interest and tends to show a recognised category of wrongdoing, together with the requirements for the particular disclosure route. A personal grievance does not automatically qualify. Disclosing to the media involves different, more demanding conditions than disclosing to an employer or an appropriate prescribed person.

Sexual harassment was expressly added to the qualifying-disclosure framework from 6 April 2026. The other statutory requirements still matter. An NDA should never imply that payment buys the surrender of protected whistleblowing rights.

Workplace NDA reform: distinguish enacted law from commencement

The Employment Rights Act 2025 provides for wider restrictions on clauses preventing workers from discussing relevant harassment or discrimination, including an employer's response. It also provides powers concerning exceptions and wider personal coverage.

As at 13 November 2026, the government's timetable, updated on 5 November, schedules the workplace NDA regulations for September 2027, subject to parliamentary processes and possible change. The April 2026 consultation considered excepted agreements, permitted disclosures and extending coverage beyond the existing employee and worker definitions, potentially including some self-employed people.

These forthcoming measures should be distinguished from whistleblowing protections already in force. Mediators should check commencement and the final regulations when a settlement is negotiated, rather than rely on a headline or assume every freelancer or volunteer is already covered.

Crime reporting and support

In England and Wales, section 17 of the Victims and Prisoners Act 2024 restricts enforcement of NDAs against victims, including people who reasonably believe they are victims, for specified disclosures about criminal conduct. The principal protections apply to NDAs entered into from 1 October 2025.

They include disclosures to specified recipients for defined purposes, such as reporting to police, obtaining professional advice or support, and cooperating with regulators. The precise conditions and agreement date matter. This is not an unrestricted permission to publish allegations or confidential material online.

Professional negligence: settling compensation does not purchase regulatory silence

The SRA's NDA warning expressly extends beyond employment disputes to negligence claims and commercial transactions. Solicitors must not use settlement terms to prevent or deter proper regulatory reports, protected disclosures or cooperation with criminal investigations.

For example, a client may settle a damages claim against a solicitor while remaining free to report alleged misconduct to the SRA. Settlement cannot bind the regulator's investigation or disciplinary decision. A professional negligence allegation does not, by itself, establish misconduct.

For other regulated professions, advisers must check the relevant regulator's rules and applicable law. Avoid treating every regulator or every type of complaint as legally identical.

The SRA also warns against warranties, indemnities and repayment provisions that inhibit permitted reporting. A promise of silence can therefore be problematic even where it sits outside the confidentiality paragraph. Regulatory impropriety and contractual enforceability are distinct questions requiring analysis.

Practical checks for mediators

A useful approach is to ask the parties and their advisers to examine:

• Purpose: what specific information needs protection?
• Exceptions: does the agreement clearly preserve protected disclosures, lawful crime reporting, proper regulatory reporting and legally required cooperation?
• Indirect restrictions: could repayment, consent or advance-notification terms deter a permitted disclosure?
• Advice and understanding: has each party had time to understand the terms and obtain appropriate independent advice?
• Process: are power imbalances, distress or pressure affecting informed agreement?
• Status: are the parties negotiating an ongoing working relationship or a legally binding settlement of claims?

These are prompts for careful settlement design. A mediator facilitates agreement; the parties' advisers should settle the legal drafting. A workplace mediation outcome does not automatically satisfy the statutory requirements for waiving employment claims. A qualifying settlement agreement or an appropriate Acas COT3 requires separate consideration.

Confidentiality of the mediation process and confidentiality of the resulting settlement should also be considered separately. Neither should be presented as overriding lawful reporting rights. Mediation should not be used to bypass necessary safeguarding, investigation or regulatory action.

Resolving workplace disputes with ProMediate

ProMediate provides workplace mediation as well as civil and commercial mediation. Workplace mediation can help employers, employees and colleagues address grievances, communication difficulties and damaged working relationships. Where appropriate, it can also support negotiations towards an agreed exit or settlement, with independent legal advice on binding terms.

A constructive outcome can protect legitimate privacy while preserving lawful reporting and access to support. Contact ProMediate to discuss workplace mediation or mediation of a professional negligence or commercial dispute.

General information, primarily concerning England and Wales; employment legislation discussed applies across Great Britain. Northern Ireland has a separate framework. Law and published implementation timetable checked on 13 November 2026.

Sources

• Employment Rights Act 1996, sections 43B–43J
• SRA warning notice, Use of non-disclosure agreements
• Acas, Using non-disclosure agreements
• Government implementation timetable, updated 5 November 2026
• Government NDA consultation
• Ministry of Justice guidance on section 17