Confidentiality: A Cornerstone of Mediation
There are many tools in the mediator’s toolbox, and the process would not work but for any number of them, including neutrality, non-judgment, active listening, … the list goes on. One of the defining characteristics of mediation is confidentiality. Confidentiality helps provide a space where parties feel comfortable sharing intimate details that one would not, under normal circumstances, confide in a stranger.
At CCR, confidentiality is very specifically laid out for parties in the mediator’s opening statement. The standard language runs something like, “this discussion is confidential as far as I am concerned. This means that I will not willingly testify to or share what I learn in this mediation with anyone outside of CCR subject to one exception – if I come to believe that anyone inside or outside this room is in danger of serious imminent harm, then I may break confidentiality to the extent necessary to deal with that situation.” The mediator may also, depending on their profession, have exceptions relating to that profession. For instance, attorneys are required to inform parties that if they learn of professional misconduct by an attorney, they may need to break confidentiality to abide by their duties of professional responsibility.
The phrase “serious imminent harm” is an important one. It means “imminent physical or bodily harm.” Child abuse is always considered a serious imminent harm issue. Other forms of abuse, including spousal abuse, animal abuse, most criminal behavior, fraud, financial abuse and property damage are not as cut and dry and require further exploration by the mediator. Situations involving the possibility of serious imminent harm always warrant volunteer mediators checking in with case managers or CCR staff to determine what steps, if any, should be taken.
There is blanket confidentiality surrounding the entire mediation and then there is the specific confidentiality that comes into play when mediators meet individually with parties in caucus to discuss possible settlement options. There are two ways a mediator might deal with the very special confidentiality of caucus. Either everything in caucus is confidential unless the mediator is given permission to share specific information or the mediator is free to reveal any information unless the party specifically tells the mediator that it is confidential. Which of these methods the mediator chooses is a matter of style, but either way, the mediator must make clear what the rule is and should, at the end of caucus, review with the party what is confidential. There are layers of confidentiality within mediation, and mediators must remain cognizant of this assurance. There is nothing that will cost a mediator the trust of parties more readily or more irreparably than breaching confidentiality. It is one of the cornerstones of the process and, without it, parties will not feel comfortable being open and honest with the mediator and, ultimately, with their co-disputant.
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