Abstract: To promote good faith in mediation， if the mediation fails， the mechanism on the “without prejudice in failed mediations” requires that neither party shall unilaterally disclose mediation communications to change the original state of rights prior to the mediation. The functions of this mechanism aims to facilitate the mediation process， maintain the mediator's neutrality， and ensure the independence and integrity of the mediation and any subsequent dispute resolution procedures. However， approaches for ensuring its implementation vary. If the confidentiality contracts approach applies， the third party outside the contracts will not be bound. If the exclusionary rules approach applies， it will contradict the contractual nature of arbitration rules. If the without prejudice privilege approach applies， it can bind all natural and legal persons. Thus， on the basis of the without prejudice privilege， combined with the relations between mediation communications and the objective of facilitating mediation， the mechanism on the “without prejudice in failed mediations” can be effectively constructed in terms of providing parties， timing， and information type.

Key words: mediation confidentiality; fair treatment; without prejudice privilege