Constructive confidentiality is multifaceted

Please note that this series is being rewritten during 2017. It will be named and numbered Constructive Confidentiality I – IV etc.

In my initial post on confidentiality I concluded that confidentiality in mediation is many things to many people  and that confidentiality implemented in a way that makes a constructive contribution to mediation is likely to be multifaceted, multidimensional and dynamic. That is, a  tailored approach to participant confidentiality shifts confidentiality from being an imposition on mediation to a contributor to mediation.

‘Cone-of-silence’, uniform confidentiality provisions in mediation assume that each person ‘is an island, sufficient unto himself’ and/or that each person has the same needs and obligations regarding the process and outcome of the  mediation. Further it assumes that a durable robust agreement can be reached independently of constituents’ input.

I question both assumptions!

I assume that joint creativity which integrates the interests of each of the parties together with consideration of constituents’ interests results in satisfactory, practical agreements.

‘Cone-of-silence’ confidentiality provisions in mediation also assume that mediation takes place in the shadow of the legal system and that therefore pre-emptive protections are needed.

I question that assumption!

I assume that mediation, like all other interactions among humans, takes place in the shade of the legal system and that it is as appropriate to reference the legal system when mediating as it is to reference the legal system for any other human interactions.

I: THE PARTICIPANTS

This post follows the previous one, in terms of musings if not in terms of chronology! You may like to reacquaint yourself with Party Red, Party Pink and Party Brown. It has been so long since my first post in this series that I have had to reintroduce myself to them!

Party Pink will have unique concerns regarding confidentiality.

As indicated by a glance at Party Red, Party Pink and Party Brown and with a liberal dose of your imagination,  mediation is literally multifaceted:  participants are individuals… and their individuality is often heightened by their conflict. It follows then that it is likely that each will have a perception of how confidentiality can be constructive  that differs to a greater or lesser extent from others’ perceptions.

By way of recap, Party Pink is attending mediation accompanied by her lawyer and her accountant. Party Red is attending mediation accompanied by his friend, and is retaining a lawyer and an accountant. Party Brown is attending mediation accompanied by her lawyer and by her accountant. Her potential business partner is unable to attend and will be kept informed by Party Brown  and her advisers.

It is important to Party Pink that her family endorses any agreement she reaches. They have supported her and provided seed funding for the venture at the centre of the dispute. Party Red is keen to convey his business acumen during the mediation because he sees opportunities arising from an agreement and has expressed confidence to a number of colleagues regarding a favourable outcome. Party Brown has a threshold amount in mind in order to maintain her side of the bargain in a highly confidential potential franchise.

II: CONFIDENTIALITY

Party Red will have unique concerns regarding confidentiality.

Confidentiality relates, although is not limited to, the content of mediation. It is axiomatic of mediation that participants are responsible for the content of a mediation,(the mediator being responsible for the process). It follows that participants would be responsible for the confidentiality guidelines.

All aspects of mediation, including confidentiality, are constructive when they meet the collective and individual needs of the participants and enhance the process. Just as each aspect of mediation can be interpreted in terms of participants’ interests while remaining true to mediation, the same can be said for confidentiality, though it rarely is.

Party Brown will have unique concerns regarding confidentiality.

I find that sometimes the notion of absolute confidentiality aligns with participants’ interests and is therefore constructive; sometimes the notion of confidentiality exists independently of participants interests’ and might therefore be neutral; sometimes the notion of confidentiality is contrary to participants’ interests.

III: CONSTRUCTIVE CONFIDENITIALITY

Constructive Confidentiality is multifaceted

• standard mediator obligations for the overall mediation
• standard mediator obligations for private sessions
• tailored mediator obligations to the referrer
• standard participant commitments for professional support people
• unique participant commitments for personal support people and constitutents

IV: MEDIATOR’S OPENING STATEMENT: MEDIATOR CONFIDENTIALITY

Standard mediator obligations for the overall mediation

Near to the commencement of the mediation there are some general aspects regarding mediator confidentiality obligations that I recap, having explained them fully during initial, private separate sessions:

Mediation is confidential from my point of view. There are five aspects to mediator confidentiality.

I will maintain confidentiality regarding all identifying aspects of you mediation, within the limits of the law.  What this means is that if I am concerned about the well-being of anyone attending the mediation or anyone potentially affected by the mediation, I will report my concerns. If in the rare event that this situation did arise, I may or may not decide to inform you of action I am taking.

I participate in professional clinical supervision, during which I may refer to this mediation. I will however maintain confidentiality regarding identifying aspects of the mediation.

Another aspect to my maintaining confidentiality is that if you and I find ourselves at the same place whether social or business, I will not greet you nor expect you to greet me. This acknowledges that you may be with people to whom you would rather not explain that you have participated in mediation. If you do decide to greet me I shall return the greeting.

Standard mediator obligations for private sessions

In my Mediator’s Opening Statement and prior to each private session, I explain:

I have explained the wisdom of calling a break ‘just before you need one’. Anyone in the room can call a break. I will round off whatever is happening in the mediation they have a private session with each of you. Before you leave the joint room for your private rooms I will remind you that everything said in a private session remains confidential from my point of view and that it need not be confidential from your point of view. I will repeat this in the private session both at the beginning and the end. Upon returning to the joint mediation room I will remind you that of confidentiality of the sessions from my perspective and ask if there is anything you would like to say before recommencing.

Tailored mediator obligations to the referrer

Toward the end of my comments on confidentiality, I explain:

I have been hired by your organisation to mediate. I have explained to HR that I can provide a report only with the authority of each of you. That is something which I will refer to progressively through your mediation. At the conclusion of the mediation I will ask you for your thoughts on whether or not a report can be sent to HR and if so precisely what the report can include.

(NB:statements also need to be made regarding admissibility.)

V: MEDIATOR’S OPENING STATEMENT: PARTICIPANTS’ CONFIDENTIALITY

It is generally understood that mediation proceedings are confidential. And if in doubt, that is the approach to take. However there is scope for confidentiality provisions to be tailored for this mediation.

Standard  participant commitments for professional support people

Confidentiality provisions include your consultation with any professional person in relation to this mediation. So, for example, you can talk to your GP, your counsellor, your lawyer and accountant, it is appropriate that you remind them that the content of the mediation remains confidential.

Unique participant commitments for personal support people and constituents

However, the best decisions are those made when you are well informed and well supported. For that reason I will facilitate a confidentiality agreement specifically for this mediation. First I will explain the idea of the ‘circle of confidentiality’.

It seems to me that everyone benefits by way of a more robust agreement whenyou each have access to the resources that you need in order to reach agreements which will work for you and for others who will be affected by your decisions. For that reason, toward the end of today’s session, I will be asking you who you would like to be able to talk the issues over with. In the interests of transparency I will ask you each to name one or two people, who you are likely to talk. those people collectively form ‘the circle of confidentiality’. At the end of today’s session, I will facilitate a discussion on guidelines which will respect the privacy of each of you while enabling you to gather opinions that you value.

This exposition is appropriately kept short and succinct, following as it does on the mediator’s commitment to confidentiality and raising as it can do, anxiety among parties regarding what they might be expected to say during the mediation.

VI: MEDIATOR’S CLOSING STATEMENTS: CONSTRUCTIVE CONFIDENTIALITY

Fast forward to the last half hour of the mediation session.

Rather than having a hypothetical discussion at the beginning of mediation, a more detailed discussion of Constructive Confidentiality is suited to the end of the mediation session when participants have some real experience of mediation . I facilitate a discussion regarding three aspects of confidentiality:

• the content
• the process
• each person’s experience of the mediation session

I refer to the unfinished and changeable nature of mediation and the information gathering and considering that will occur between this and the subsequent session(s). I facilitate a discussion that considers whose information is whose and whose experiences are whose. Typically, this short discussion also provides me and all participants with feedback on the progress of the session.

As I start to close this session I am wondering what you are each thinking would contribute to maintaining the momentum in your next session. Specifically, it would be helpful to hear

• what you plan to be considering
• what information you plan to be obtaining
• what information you would like others to consider obtaining

Having heard from each of the participants, I suggest that in the interests of thoroughness, each participant considers each of the aspects that has been raised and obtains each of the types of information that has been referred to:

To obtain pertinent information and advise you may need to provide information from the mediation. As mentioned earlier, unless there is an agreement otherwise, all aspects of the mediation are confidential.

What might work for confidentiality guidelines that would respect the privacy of each and provide the scope to obtain the most appropriate information and advice?

A brief discussion follows. The content, the process and participants’ experiences are commented on by each. I summarise tentatively and an agreement is formed. Each constructive confidentiality agreement is different.

Party Brown’s interests include financial interests.

In this situation, Party Pink, Party Brown and Party Red agree to maintain the confidentiality of the mediation as follows: all encourage each other to discuss the mediation with a range of professional advisors, focusing on the content, the process and on their own experiences and to explain to the professional advisers that the discussion is in confidence. All agree that the discussions with nominated support people will be limited to the content of the mediation; the process of the mediation and the personal experience of the speaker. That is, it is agreed that any quotes from mediation, will be only those of the speaker

Party Pink’s interests include family endorsement.

That is, all agree that Party Pink may discuss the mediation with her neighbour who has some experience with similar issues; that Party Brown may discuss the mediation with her potential new business partner and that Party Red will advise the mediator, who will advise the other parties, if there is anyone he would like included in the circle of Constructive Confidentiality.

This is the second very significant shift of the mediation: namely a shift from self-interest to collective interests. The first very significant shift of the mediation is from positions to interests, self-interests.

Party Red’s interests include reputation as the astute businessperson.

The agreement of Parties Red, Brown and Pink is one among many configurations of constructive confidentiality. Other groups of participants agree to confidentiality that is absolute or conditional or partial or variable or contingent or limited.

I practice mediation expecting that each participant is likely to have unique concerns regarding confidentiality (multifaceted); that those concerns will emanate from a variety of sources (multidimensional) and that the relative significance of those concerns and sources is likely to evolve throughout the mediation (dynamic).

VII: NEXT IN THE OCCASIONAL SERIES

My next Constructive Confidentiality blog post will muse upon my thoughts and describe my practice of Constructive Confidentiality in terms of the multidimensional aspects of confidentiality.

Family Dispute Resolution: engaging the other participant

Recently I received an enquiry from a colleague:

“I was wondering what the guidelines are for the timeline for participant B when making an appointment for FDR? I use the 21 day timeline for a response, to engage in the process, however if they engage and don’t want to make the appointment for several months, where do I stand?”

 

Participant A

My reply:

“I assess each situation on a case-by-case basis.I am guided by the principles of mediation and the obligations of FDR Practitioners, including and not limited to mediator even-handedness; mediator responsibility for the process; mediator confidentiality; mediator consideration of the individual circumstances;  participants’ self-determination; procedural inclusivethisness; procedural consideration of relationships.

Participant B

“The principle from which all others flow, in my opinion, is participant self-determination. This is my opinion, even considering the obligation of potential participants to ‘make a genuine effort’ to reach agreement regarding the children’s arrangements in mediation before they can file in the Court. The obligation of potential participants to ‘make a genuine effort’ is triggered by a coinciding of their timing.

“It is a fundamental characteristic of mediation that it can go ahead only when the participants are at the table, whether in literally or virtually. If they are not, the choice of each is to

• wait
• go their own way
• wait while going their own way

“Each of their choices involves considering their ATNAs (Alternatives To Negotiated Agreements). ATNAs are each of the processes that is available to potential mediation participant, that is not dependent on the voluntary involvement of the other participant. A self-determining participant has the scope to consider each of their ATNAs and to decide on their BATNA.

“Waiting is an ATNA that needs little explanation.

“Going their own way involves considering their other ATNAs.

“As a non-lawyer FDRP, you can provide information and not advice to assist participant A to develop a list of alternative processes and to consider each. (As an aside, it is my firm opinion that this guideline should apply to all FDRPs, independently of their primary qualifications.) How can you distinguish information from advice? Information is what you would say to anyone in a similar situation; advice is individualised.

“The  ATNAs of participant A include waiting until the other is ready; asking for a certificate and not filing in court; asking for a certificate and filing in court; commencing legal negotiation etc. Participant A’s ATNAs do not include private negotiations with participant B because this alternative is dependent on the voluntary involvement of the other participant, disqualifying it from being an alternative to a negotiated agreement.

“In my opinion, it is the role of the mediator to take participant B’s decision to postpone mediation, at face value. That is, you do not ask why they would prefer a delay because that would put you in the position of forming all being assumed to have formed an opinion and possibly being seen to compromise or compromising your evenhandedness. You might decide to ask participant B

• “What is important to you about how you come to arrangements with participant A?”
• “What is important to you about the timing of coming to arrangements?”
• “What might you do if participant A decides against mediation?”

and in response to the answers to that question

• “What are the strengths of each of those alternatives, for you and for the children?”

The same questions will assist participant A to clarify their thoughts.

The reason for asking these questions rather than ‘Where do I stand?’ is that the questions above address  the principle of interests focused decision-making and the principal of self-determination. The  question ‘Where do I stand?’ is premised on the principles of entitlement and mediator-determination. (It is true that once the mediation is underway, the mediator will make determinations about the process. At this stage, however, the mediation is not underway.)

“If participant A decides to wait for a fixed period and/or indefinitely, you might decide to wait for a fixed period and/or indefinitely. If participant A moves on to another of their ATNAs, you might decide to put their file on hold. After approximately 6 months, in my practice, either mediation is going ahead or I close the file.

“In summary and in very general terms, as I see it, a mediator follows the lead of the participants in establishing the mediation; leads the participants in the process of the mediation and follows the lead of the participants with regard to the content of the mediation.