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

Mediation: the skilful lawyer

I find that dispute resolution is portrayed as either lawyer-lead or mediator-facilitated. Like most binary analyses, this one is simplistic and exacerbates the antipathy between the capitulating and the creative approaches. People are complex. Solutions for people involve complexity. I prefer to have the best of both approaches: Complementary Dispute Resolution. In CDR  lawyers fulfill three interdependent roles: trusted advisors, champions of the process and consultants to all. In each role they, like all others involved, complement the roles of participants, mediators and personal supporters.

mediation roles professional support cascade 140123

Lawyers as trusted advisors

  • listen assiduously to hear their clients’ evolving expression of what is of importance and of concern
  • think creatively to assist their clients to identify core issues and later to contribute options
  • speak tactfully to assist their clients to clarify issues and to consider possibilities that could address their concerns and responsibilities
  • advise credibly to enable their clients to consider the impacts of other courses of action and to assess the risks of each
  • conclude supportively to assist their clients to commit to practical steps to move forward

Lawyers as consultants to all

  • listen assiduously to assist their clients to hear what is of concern and of importance to each of the participants
  • think creatively to assist their clients to contribute substantive options that are of potential benefit to each of the participants
  • speak tactfully to assist their clients to provide considered responses to each of the participants and feedback to the mediator
  • advise credibly to assist their clients to develop responses and options that are potentially productive for each of the participants
  • conclude supportively  to assist their clients to commit to practical steps to move forward with agreements reached by all

Lawyers as champions of the mediation process

  • listen assiduously to contribute to the attentive tone of the mediation and by confining most comments to the private sessions
  • think creatively about the purpose of each stage to encourage their client to participate in a way that maximises the effectiveness of mediation for all
  • speak tactfully to provide their clients and mediations in general with encouragement by noting progress stage by stage
  • advise credibly according to the purpose of the stage of mediation and to validate the mediator’s management of participants’ expectations
  • conclude supportively to affirm their clients and all present by commenting on participants’ commitment to the process

mediation roles professional support circles 140123

Choosing mediation

Each person is unique; each mediation is different from each other mediation.  Even so, I start every mediation by meeting with each person separately and at that meeting I explain the essence of mediation.

This is one of the diagrams that I use.

mediationis 140123 logo title background copyright

The first line explains what mediation is and the second line explains what mediation is not.  What I raise is that + differs on every dimension from v and that resolving agreed issues is an experience incomparable with the experience of accepting a pronouncement on a set of issues described by the law.

Experiences of mediation and court

mediation and court

I created this diagram to show some of the differences between the experiences of mediation and court.

Mediation is an opportunity for all involved to think creatively outside the box on legal, social and interpersonal issues. Then, participants can decide personally and pragmatically inside the box on agreed issues.

Court is an opportunity for a judicial officer to think logically inside the box on legal issues and to decide inside the box, on behalf of parties, who will win and who will lose on the legal issues.

So the questions is, who will be making the decisions about what?

Mediation is not a settlement conference


Mediation is often confused with settlement conferences.  There are some fundamental differences.  Settlement conferences involves competition resulting in compromise.  Mediation involves co-operation resulting in an agreement.  I developed the set of diagrams below to demonstrate these processes.

The parties’ positions on the diagram below represent the outcome they are aiming for.  The primary questions in a settlement conference are “What is your position?” and then “What is the least you are prepared to settle for?”.  Neither party can have all that they want.  They will each need to compromise to reach a settlement.

Referring to the diagram, the most efficient settlement will be a compromise found somewhere along the red line.  In a best case scenario, if there are ten units available, all ten will be shared.  However, in any case other than the most efficient negotiations some units will be lost in legal fees, other advisors’ fees, time, and emotions.  This loss may be considerable because the process is competitive.  In these cases, the settlement will be in the grey area and will involve less or much less than ten units.  A unit could represent anything tangible which each participant wants and is important to them.

logo explained_determination

The diagram below represents the fundamental difference that mediation offers.

The participants’ placement on the graph represents all that is important to each.  The primary question in a mediation is “What is important to you?”.  Each participant can have all that is important to them.  They will each need to be creative to reach a mediated agreement.

Referring to the diagram below, the most satisfactory outcome will be an agreement found in the dark blue square.  In a best case scenario, if there are ten units available, all ten could be available to each participant.  Realistically, it is likely that some units will be lost in legal fees, other advisors’ fees, time, and emotions.  However, because the mediation process is co-operative this loss will be minimal.

logo explained_important

Referring to the diagram below, in a mediation it is likely that the agreement will be in the lighter blue areas.  Each participant has the potential to gain up to ten units of what is important to them.

logo explained_mediation

Margaret’s Mediation Maxim

mediation diagram halsmith dispute resolution

I developed this diagram after reflecting on the essence of what works in mediation.  I’ve found that in this case, what works for one works for all.  When participants, support people, lawyers and the mediator all listen generously they are all inclined to think creatively, speak moderately and decide wisely, leading to satisfactory conclusions.