How do you approach confidentiality in mediation, and can you give an example of how you've upheld it in a sensitive case?

Confidentiality is a critical aspect of the mediation process, particularly in its ability to increase trust in the process and the mediator. For this reason, it is of the utmost importance in our mediation process. Some ways to implement confidentiality and privacy include: 1. Use of a secure portal for the transfer of all information amongst clients and professionals 2. Approval from clients before inclusion of any other experts in their case 3. Not recording any sessions, either as the professional or the client 4. Verifying that the client is attending from a private location when attending virtually 5. Not allowing third party attendance in mediation, without client permission 6. Removing any unnecessary details from memos or other documents that may become public record 7. Verifying your confidentiality structure with clients from the beginning of your process i.e. is something one party shares automatically going to be shared with the other party or does permission need to be granted 8. Removing all personal client data from your system within a set period of time (in our office 6 months) It is also pertinent to understand that some clients may use confidentiality in a way to harm their partner. In one instance, we had a potential client share confidential financial data with us and refuse to let us share it with the other partner, wanting to hide it. While we did not share the confidential information, retaining confidentiality, we also refused to work with the client as they were intending to use confidentiality to harm his spouse financially.

The first mediation meeting is dedicated to setting frames and boundaries. Part of this process is inviting the clients to submit and evaluate any rules of conduct they feel that they need to make the "room" a safe place. I will open up this process by laying down my only groundrule which is confidentiality and what it means for me as a professional. Part of that is that there be no recording of mediation sessions (also written into the mediation contract). Part of the "rules" our boundary making process is to discuss the "why" of a ground rule and generate agreement. There is no forward motion in this process until there is agreement on the parameters for emotional safety and how these parameters will be called out should they be crossed. Recently I had a client who was very clear that they wanted to record the sessions because they were concerned that things they said would either be misconstrued and/or taken out of context and used against them in the legal process. The other partner was adamantly against recording as was I. After some discussion, the concerned party agreed that mediation meeting notes would be an adequate substitute on the condition that they could give feedback and contribute if they felt they had been misunderstood in some capacity because this would meet their concern. In creating agreement from the beginning of the process, we set a tone for the kind of work we will all be doing, a collaborative process where we focus on meeting the needs/concerns that are driving position and opening the door for agreements that go beyond the position while still meeting the concerns of everyone in the room.

Confidentiality is essential in mediation. I start by explaining to each party that our private meetings are confidential. Before ending each private session, I confirm what should remain confidential. With sensitive information, I coordinate with the party and their attorney on what and how to disclose. If there are concerns about impartiality or confidentiality, I try to address them by seeking to understand the basis. Recently, I faced a challenge maintaining confidentiality when one party missed a critical deadline. Sharing this information could have facilitated settlement discussions, but I prioritized confidentiality over settlement.

Confidentiality is a must during mediations. I have everyone sign a confidentiality agreement. This is particularly important if they are mediating a litigated case. Mediation participants need to feel safe to disclose whatever they need to in order to get to a mutually agreeable resolution. If someone feels that the other side could take what was said in the mediation and use it against them in court, there would be little to no trust in the process and getting to a resolution would be significantly more difficult. I have had people who were doing family mediations ask me for transcripts of the mediation, so that they could prove to a court that the other side was not mediating in good faith. I always let the parties know that there is no recording or transcribing of the process. All information gained during the mediation is not allowable in court and the mediator cannot be called to the stand to testify about what was said or not said during a mediation session.

It is of utmost importance that the Agreement to Mediate specifically delineate issues of confidentiality and how they will be addressed. I advise the parties to the mediation, from the inception, that they should feel free to discontinue the mediation to consult counsel or me outside the presence of the other party. Should that individual tell me something they wish to maintain in confidence, I will honor it, according to the terms of the Agreement to Mediate. When the session is reconvened, I will honor that confidence, while asking the party who wished to maintain that confidentiality generalized questions, without divulging that confidence, which allow the party to broach the issue should they and only they wish to. Such as - Is there anything else you want to say or is there any issue you want to address that has been left unaddressed? Otherwise, I assiduously honor the confidence. I find it arises most often in divorce mediation and will meet with the party who has the concern. I've never violated the request for confidentiality and in those instances, if the party chose not to address the issue, I don't believe it affected the process. Especially since both sides are reminded of their ability to consult with counsel, before, during and after the session, and encouraged to do so.

Confidentiality of proceedings in mediation is often critical to ensuring that extraneous input from persons not participating in the mediation is curtailed. The rules of many institutions administering mediations do not impose a confidentiality restriction on the parties (although they do impose that restriction on the mediator). So it is important that the mediator at the outset of the mediation point out to the parties the desirability of having them agree to such a restriction,, and if they agree, to provide them with a confidentiality agreement for them to sign or otherwise acknowledge their agreement to abide with that restriction.

Confidentiality in mediation might seem straightforward, but what does it really mean? It requires nuance, a clear understanding of what can be promised, and full transparency. Mediation always involves sensitive information, making it essential to strictly limit the contexts in which information is shared and to clearly communicate when exceptions may arise. In my practice, I am upfront about the confidentiality I can offer and the aspects I cannot control. There are many exceptions, such as safety concerns and mandatory reporting obligations. Some states provide legal privilege for confidential mediation discussions, while others do not. I cannot influence court decisions, nor can I control what other parties disclose outside of mediation. Even if confidentiality could be guaranteed, I avoid making absolute promises. Mediators need support to navigate complex cases and manage the emotional toll. Reflective practice groups, where mediators debrief and share experiences, are crucial for professional support and growth. These groups uphold confidentiality, though some case details may be discussed. In those confidential settings, I may share certain case details to seek support and improve my practice, but I would never disclose names or identifiable information. A skilled mediator recognizes the emotional weight of your stories and ensures they have the support needed to remain present, understanding, compassionate, and fair.

Confidentiality in mediation is crucial to creating a safe and trusting environment where parties can freely express their concerns. I strictly adhere to confidentiality agreements and ensure all parties understand the importance of keeping discussions private. For example, in a sensitive case involving a dispute between a pet owner and a breeder over an alleged genetic condition, I maintained confidentiality by ensuring all medical records and conversations remained secure. I only shared information necessary for mediation with the consent of all involved parties. This approach not only protected the privacy of the individuals but also fostered open communication, leading to a fair and amicable resolution. By respecting confidentiality, I was able to uphold the trust and integrity of the mediation process, demonstrating the importance of privacy in resolving disputes.

Confidentiality is certainly one of the most crucial elements of mediation. It encourages open and honest discussion and promotes self-determination, another key element. I make it very clear to the parties from the outset that confidentiality allows us to identify and consider all possible solutions without the risk of rejected ideas working against them later. Confidentiality ended up being the reason I settled a case when a client shared with me in caucus her true motivation for maintaining her position in the dispute. When I validated her feelings, she felt heard and she allowed me to share it with the other party and it convinced him to relent on his position.