Response to Rick Weiler 5 April 2018 on Kluwer Mediation Blog: Whither (Wither) Mediation?

Thank you for your post Rick. It makes provocative reading. Both your analysis of trends of significant concern and your approaches to address the trends resonate with me. Worryingly, (worrying me) the overall effect of the nine + trends is greater than the sum of its parts. There is hope however, because the five approaches to improvement that you identify, taken together, will have an exponential effect on redirecting the trends from withering to thriving.

It is your introduction that captivates me because it contains the key to redirecting the trends from withering to thriving.

“… trends in commercial mediation in Ontario are unsupported by any reliable data – because no one keeps track.

No one records. It’s all anecdotal.”

Why is this?

I suggest that it is because mediators, individually and collectively, have grown dependent upon one aspect of their practice and that this aspect asserts a disproportionate influence on maintaining mediation as a precarious practice. I think of this aspect as a villain, a wolf in sheep’s clothing.

You say ‘No one records. It’s all anecdotal.’ I hear ‘There is no data.’ Without data we condemn ourselves to being seen to belong among the fads on the fringe; to the alternative sector; a sector that could just as accurately be named ‘unsubstantiated’. How many of us are willing to say that we practice UDR, let alone keep a substantiated record our practice of UDR?

Data alone, however, is/are not the answer. It is data that are valid and reliable that are the passport to mediation becoming a practice of substance and a profession of credibility with a promise of sustainability.

Valid mediation data that is reliable are yet to be identified and agreed. And why is that? There are many, many reasons: some structural, some practical and some mythical. The mythical lead me to my conspiracy theory. IMHO the data-denying villain is a double agent. It has a uni-dimensional personality, characterised by a construct that is revered by mediators across the world; heralded as pivotal to mediation. It is a creature that thrives in the warm, dark, damp caves of mediation practice. As a result, the process and the promotion of mediation, and therefore the practitioners of mediation have become dependent upon it.

Who is the villain?

The villain, in my opinion is confidentiality. Together with its siblings, privacy and inadmissibility, they wield their power, thrive and deprive mediation of oxygen. They keep the would-be data hidden at best, and at worst, they cause it to be released in the form of information, which without validity and reliability, is misinformation.

Step 1 in the revival and the thriving of mediation is to develop a much more sophisticated approach to confidentiality which gives it the status of other constructs of mediation including future focus, peer interactions and inclusivity. Perhaps a sophisticated approach could start with a constellation of confidentiality that is dynamic and incomplete, rather than maintaining  linear, binary, static views of confidentiality, privacy and admissibility.

One among many starting points in the shift from withering to thriving, is to consult a professional statistician.

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] http://en.wikipedia.org/wiki/Communitarianism [ii] http://debate.uvm.edu/handbookfile/pubpriv/046.html [iii] My brackets: ‘only’ is too strong for my understanding of communitarianism

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.

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.

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.

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.

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.

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.

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.