How Do You Approach Confidentiality in Mediating Sensitive Cases?
Mediator Experts
How Do You Approach Confidentiality in Mediating Sensitive Cases?
Navigating the delicate balance of confidentiality in mediation is crucial, and to shed light on best practices, we've gathered insights from four experienced professionals including Mediators and Attorneys. From prioritizing confidentiality over settlement to ensuring privacy with agreements, these experts share their strategies and real-world examples of maintaining discretion in sensitive cases.
- Prioritize Confidentiality Over Settlement
- Implementing Confidentiality with Secure Practices
- Set Confidentiality as a Foundational Rule
- Ensure Mediation Privacy with Agreements
Prioritize Confidentiality Over Settlement
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 in maintaining confidentiality when one party missed a critical deadline. Sharing this information could have facilitated settlement discussions, but I prioritized confidentiality over settlement.
Implementing Confidentiality with Secure Practices
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 among clients and professionals.
2. Approval from clients before the 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.
Set Confidentiality as a Foundational Rule
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 ground rule, 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" in 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 positions and opening the door for agreements that go beyond the position while still meeting the concerns of everyone in the room.
Ensure Mediation Privacy with Agreements
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.