When you are ill or hurt, you talk about your concerns and symptoms with the understanding that your health care providers can’t go back home and tell their dinner party guests all about your issues. When you go to a lawyer, you need to have the opportunity to discuss strategy and details without fear of disclosure. If you go to confession, you need to know your spiritual leader isn’t writing a book about your exploits. Confidentiality is the cornerstone of many relationships, and it is also essential for a mediator.
There are two branches of confidentiality in mediation:
- The mediator holds the information disclosed and shared in mediation confidential. The mediation agreement should state that he/she is not able to testify or give evidence. What happens in mediation stays in mediation. Mediation has this in common with Vegas J.
- There is confidentiality between the parties. If, for instance, one party meets with the mediator separately, is the information revealed in these caucuses confidential? There are a few ways of dealing with this, and the agreement should set out the mediator’s policy. It could be that anything you say to me as mediator can be disclosed to the other party unless you specifically tell me not to.
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The other option is to say that anything said in caucus is 100 percent confidential unless the mediator obtains permission from the party to disclose.
I typically do the latter to take the pressure off the party to remember what they said or did not say. If you forget to tell me you don’t want me to disclose the information, I don’t then share that unless I have asked permission to do so.
Our lives are increasingly less private; everything, it seems, is available for public consumption. Except, except, what happens in mediation, or at the doctor’s office, or with your lawyer. These relationships are built on confidentiality, and without that foundation, they crumble. Without that assurance, mediation loses its considerable power.