Constructive Confidentiality in Mediation I

It is generally accepted that confidentiality is integral to the theory and to the practice of mediation. Why? Because…

When discussions are confidential the effect can be emancipating. Free of the risk of judgement by people peripheral to the mediation, confidentiality provisions can contribute to participants’ self-assurance which can be a catalyst for broad, thorough and frank exploration of issues ‘without fear or favour’. Confidentiality can provide a ‘cocoon of safety’.

At the same time, when discussions are confidential the effect can be constraining. Isolated from people who are affected by the issues being mediated and who can affect the durability of the outcome of mediation, confidentiality can contribute to participants’ uncertainty which can delay the progress of mediation and reduce the efficacy of outcomes. Confidentiality can produce a ‘desert island’ effect.

What is confidentiality? Confidentiality is the behaviour associated with maintaining a ‘cone of silence’ regarding ‘something/s’, which in practicality means to repeat the ‘something/s’ only to oneself. Perhaps to keep a confidence involves rumination? Certainly to not keep a confidence could involve ruination…

What is mediation? Mediation is the even-handed facilitation of a structured process during which the mediator is responsible for the process and the participants are responsible for the content of discussions and outcomes. Perhaps to mediate a mediator practices cordiality? It is not mediation if it involves loss of partiality.

Who are mediation participants? Mediation participants are the people who have decided that to get together privately to resolve persistent issues meets more of their interests than to remain apart and maintain issues or to get together publicly to resolve them. Perhaps participation in mediation is to have the foresight of cooperation. It is not participation if it involves advocates and litigation.

Conceptually, all aspects of mediation are swaddled in confidentiality. That is perhaps a reasonable expectation of mediators. To expect of participants what is expected of a mediator is to imply that the experience and consequences of a mediation are similar for each. They are not.

From beginning to end of one mediation to the next, mediators’ experience of a mediation is of mediation and their consequences of mediating are (all being well) more mediations.  Each mediation belongs to the participants. it is fleetingly a joint venture.

From the beginning of their one mediation to its end, participants’ experiences of mediation are likely to range from stressful upheaval to relieved satisfaction, inclusive. Participants’ consequences of mediating involve change and the changes range from outcomes they can ‘live with’ (that then ripple further afield) to no change (that ripples further afield) inclusive. Each mediation ‘belongs’ to the participants: their past, their present, their future… and usually ripple into others’ pasts, others’ present, others’ futures.

Conceptually, confidentiality is absolute. In practice, it isn’t. ‘Exceptions’, as they say, ‘make the rule’. Like the concept of confidentiality, the exceptions, for a mediator, are typically clear and uniform. They are the statutory and/or ethical obligations to report concern regarding harm and impending harm. Exceptions for participants are probably clear and unique. They probably include personal and social responsibilities and ethical obligations to keep those in the ripple zone informed.

In my experience, the confidentiality spuriously required of mediation participants is only occasionally maintained during, and rarely beyond, mediation. (Admissibility, on the other hand, is, in my experience, generally adhered to.) Most of what I have learnt about mediation I’ve learnt from listening to participants. What I have learnt about confidentiality vis a vis participants, is that it is impractical, unreasonable and can be an unnecessary contributor to the tension of mediation.

The discrepancies, and the potential dissonance caused by the discrepancies, between the spurious ‘cone-of-silence’ confidentiality compliance by participants and the actual, open non-compliant behaviour of participants intrigue me.

The tacit acceptance of the discrepancies and the potential creation of procedural dissonance for participants by mediators’ conceptualising confidentiality as absolute concerns me. Participants choose to mediate in order to remove dissonance from their lives. Mediation is a structured process of facilitating consonance that is practical for each and for all.

I practice an approach to confidentiality that overtly integrates the various components of confidentiality with fundamental mediation principles.  This ‘constructive confidentiality’ is confidentiality that is compatible with the mediation principles of participant self-determination ie instrumentality; participant-focused practice ie reality; and participant-constituent inclusivity ie practicality.

For the avoidance of duality and in the interests of finality, ‘constructive confidentiality’ includes (and is not limited to) participants’ reality, which translates (for them) to practicality and (above all) maintains their instrumentality.

My next post on constructive confidentiality will expand on how the construct acknowledges participants’ individuality; affirms participants’ instrumentality and accommodates participant-constituent plurality. In summary, my next post is concerned with how constructive confidentiality is grounded in participants’ reality and how it acknowledges participants’ need for practicality of confidentiality.

[i] [ii] [iii] My brackets: ‘only’ is too strong for my understanding of communitarianism