Underlying Philosophies of Mediation 5 – Confidentiality

When we train mediators and conflict coaches one of the exercises we sometimes do is ask people to brainstorm why confidentiality on the part of the mediator is important to the mediation process. Some of the words or phrases that arise can include: trust, safety, openness, honesty, opportunity to tell it like it is, can admit mistakes, creativity, can share personal information…..and other similar concepts. We then tear up the sheet of paper on which it is written and point out that all of these are likely to be lost if, as mediators, we don’t practise confidentiality strictly and with discipline in all of our dealings relating to mediation, including outside of our direct involvement in a case.

Our commitment to confidentiality is also inextricably linked to our ability to maintain impartiality. One of the things I was pleased to see in the recent ACAS document ‘Mediation – an approach to resolving workplace disputes‘ (page 29) was the following assertion:

What happens when mediation breaks down? If at any point during the proceedings one of the parties wants to withdraw from the mediation for whatever reason, the mediator will inform the co-ordinator that the mediation will not proceed but will not indicate why or who has decided to pull out”  (my emphasis in bold)

This disciplined approach to maintaining confidentiality is something I have seen not practised in a range of different areas, sometimes unconsciously, on other occasions deliberately. The information about who wished to take part and who didn’t is shared because of a view by someone involved in providing mediation that some form of judgement should ensue about a disputant who does not take part in the process – as if somehow this makes them the ‘bad guy’, when, in line with the voluntary, impartial, client-led nature of the process, everyone should be able to not have to participate in mediation if for any reason, that they don’t have to give, they don’t feel comfortable in doing so. Our commitment to confidentiality supports that voluntariness and our commitment to our remaining impartial.

As a result a typical closure letter about a case could look something like the following:

This case was referred on….[date]…..by …..[referrer]. We met with one of the participants in mediation on ……[date]……and the other on…….[date]……….there was not mutual agreement to take part in a joint meeting and so we are closing the case file on this case. 

This closure report is made without prejudice and in line with our policy on confidentiality and impartiality making no reference to either participant in the process  by name.

When I worked in the field of neighbour mediation there would often be requests by referring anti-social behaviour officers for details of who refused mediation as it was considered a possible way of prejudicing a case against a party ‘when it went to court’. What was often not understood was that the contents of a mediation are inadmissible in court and also that ‘not attending mediation’ is not an offence and so for non-participation to be considered a factor against a party in any judgement, particularly with no information about the reason why, would be a clear breach of justice and open to appeal if a judge were  to take it as a relevant factor. It was surprising therefore that officers would request this and it was disappointing that some mediation services actually provided the information, thereby failing to educate the relevant referrer of their misunderstanding of what non-participation could or could not imply, and at the same time breaching both their confidentiality and impartiality commitments as a mediation service.

Misinterpretation of the role of confidentiality in mediation

One of the unfortunate misinterpretations of the use of, and relevance of mediator confidentiality is that it is sometimes suggested that mediation per se is confidential and that all things that get discussed in a meeting are not shared outside of the meeting by any participant in the meeting rather than just by the mediator.

Unfortunately this has led to many who have had mediation feeling that they cannot discuss their experience and its outcomes when they would have preferred this not to be a constraint. Additionally they have felt that the many things that can be learned from a mediation discussion and which can lead to positive change are hard to implement without ‘breaching confidentiality’. This is a misapplication of confidentiality if a mediator or mediation service has persuaded participants that this is so as one of the major benefits of mediation is the learning and changes that can arise from discussing in detail a dispute or relationship difficulty. Not being able to implement something that is clearly a better way forward in the eyes of those directly affected because it was ‘discussed in mediation and so has to remain confidential’ is  an unnecessary obstacle to participants deriving full benefit from what mediation can offer.

Unless it is specifically agreed within a joint mediation meeting that all participants will keep the content confidential, this is not the purpose for which confidentiality plays such an important part of the mediation process as conducted by the mediator. I put the last part of that statement in italics as it is only, initially, the Mediator who is bound by a guarantee of confidentiality. Those involved in a dispute/ relationship breakdown or other difficulty can decide for themselves if they believe it is an important part of what they decide in their mediation meeting or not. It is a client-led process! Some participants may not feel they want confidentiality and others may not worry one way or the other. And of course some may want it. But this is a reflection of the diverse situations in which mediation is involved and the diverse outcomes of mediation that are possible. It should not be a pre-agenda that participants are bound by confidentiality agreements as they may see that as an unnecessary constraint on what they discuss in the meeting and do beyond it. It may also be a reason why many do not take up using the process.

This is a statement from a LinkedIn discussion participant in relation to this issue which reflects how mediation is being unnecessarily constrained in some areas by this practise:

However, as has been indicated in the discussion, even after the parties have reached a resolution, sometimes they have to go back into the same workplace where the same behaviours or attitudes are in play. The ADR process results are bound by a confidentiality clause so it makes it difficult for either party to discuss what actually occurred other than to respond by saying words to the effect “We attended the process and reached a resolution”.

What an unfortunate limitation on the possible benefits of mediation and what a staid and stagnating impact that has on what can be an enormous opportunity for creativity and positive change arising from a mediated discussion.

When used in this way it becomes more like a ‘legal settlement gagging order’ and is, perhaps yet another reflection of where the clear distinction between mediation and the legal process is still not clarified. However, what is not always made clear is that participants in mediation do not have to accept this constraint, and so it also reflects a lack of clear explanation of what is possible in mediation by the mediator.

When I mediate, I guarantee that what I hear remains confidential. I don’t take notes other than to help me facilitate the meeting and I will tear these up afterwards. The only other documentation I may create within a meeting would be an agreement if that is something the participants are wanting (and it may not be what they want – see ‘Getting a Mediation Agreement – Mediation’s Red Herring’)

Beyond the meeting I will not confirm or refute any statement made by one party or the other(s) in relation to the content of what is discussed and so there is no independent ‘witness’ to confirm any future prejudicial statements made by any participant should that unfortunate situation arise (I have never been asked to do so in 19 years of mediating however) Therefore any allegations arising from a mediation, should they occur are only one party’s view or ‘hearsay’, and even if I were to act inappropriately and share information from a mediation, my account would not be admissible in court anyway. (And I would have no future as a mediator).

So, to summarise, and some questions for reflection:

Mediation per se is not a confidential process, it is the mediator who maintains confidentiality with regard to what he/she hears in the mediation meeting and separate Initial Meetings with participants. But mediation can be decided to be confidential within their joint mediation meeting by the participants if they both agree this to be needed.

If one participant wants confidentiality and the other does not the one who does has the right to end their involvement as it is a voluntary process. The other party may take this possibility of withdrawal into consideration in deciding whether they wish to stick with their wish to keep what they hear confidential or not.

If ‘confidentiality’ is an issue within the meeting it is important that this forms one of the issues to be discussed. Why is it important to one and not the other, what are the implications? Those who have complained about the constraint  have clearly not had the opportunity in their mediations to either discuss their concerns about this nor to consider their right to withdraw.

This is a practice issue for mediators to consider.

Why have such concerns arisen without being addressed in the meeting itself? Why have mediators set confidentiality as a requirement of participants rather than just themselves prior to the meeting? (Please note, any response by a mediator that assumes to know the answer for all of their clients without asking them individually in the mediation meeting itself is a mediator who is not listening to their clients nor addressing their needs)

 

Let me tell you a secret
Put it in your heart and keep it
Something that I want you to know.
Do something for me
Listen to my simple story
And maybe we’ll have something to show.
You tell me you’re cold on the inside
How can the outside world
Be a place that your heart can embrace?
Be good to yourself
Because nobody else
Has the power to make you happy.
George Michael – Heal the Pain
from Listen Without Prejudice Vol.1
 

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