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  • Writer's pictureEd Johnson

Confidentiality and trust in mediation

With the continued backlog of cases mediation is even more so now than ever the best choice to find a resolution for your dispute. Get your dispute resolved now while you can’t go anywhere you can really concentrate on what’s important and what deserves your time and energy.

Northwest Mediation continues to use Zoom, Skype and FaceTime as well as the phone and emails to resolve disputes should we add we also do live in person mediation too! So please do not feel that you cannot contact us if you would like to mediate but wish to do so remotely.

In life people often tell you things that they tell you are “confidential” or “not to be repeated” - one member of my family is notorious for only being trusted with confidential matters if you want the whole world to know in under three hours. We tested this theory some years ago and after telling the family member something which wasn’t for general circulation (it absolutely was) on a Monday I had the same information told to me by someone else on a Friday evening at the cricket club.

My point? Confidentiality is a matter of trust you have to know what you say won’t be repeated, it why you’ll see in any training, blogs or case studies I work on the names and details get radically changed or amalgamated into one set of events pulled from several. It ensures that a client’s confidential information is never disclosed and trust is retained.

Building up trust to allow clients to disclose matters to you is why mediation takes time and can’t be rushed and only by building up that trust can you then find that the client is comfortable to discuss matters which are confidential.

What is Confidentiality in Mediation?

Confidentiality in mediation means that all information discussed during the mediation process is kept private and cannot be disclosed to anyone outside the mediation unless and until both parties are prepared to agree for it to be disclosed (sometimes in a court order). This includes not only what is said during the mediation but also any documents or other information shared. In civil cases I destroy my notes at the end of the mediation to ensure this protection is preserved.

Confidentiality enables parties to communicate openly and honestly with one another and the mediator without fear of repercussions. It allows for a safe and supportive environment where participants can explore possible solutions and work towards a mutually beneficial agreement, and means that a client can offer to do x if y is the result but does not feel bound by the offer if the other party does not wish to follow that line of negotiation.

Why is Confidentiality Important in Mediation? There are several reasons why confidentiality is crucial in mediation.

Encouraging Open Communication: Confidentiality provides a safe space for participants to communicate openly and honestly. This helps to ensure that all parties have an equal opportunity to express their needs and concerns and work towards a mutually beneficial resolution.

Protecting Privacy: Mediation provides a confidential forum for parties to resolve their disputes without the need for public court proceedings. This helps to protect the privacy of the parties and their families, especially in cases involving sensitive or personal issues.

Building Trust: Confidentiality builds trust between the parties and the mediator. When participants feel confident that their information is being handled confidentially, they are more likely to be open and honest with one another, which can help to build trust and facilitate the negotiation process.

Facilitating Settlement: Confidentiality is essential for successful mediation, as it allows participants to explore creative solutions without the fear of having their proposals used against them in future legal proceedings. This can help to facilitate settlement and prevent the need for costly and time-consuming litigation.

What are the Limits of Confidentiality in Mediation? Confidentiality in mediation is not absolute, and there are some limits to what can be kept confidential. These include certain legal obligations: Mediators are required to report certain information to the authorities, such as instances abuse, neglect, or violence. Participants may also choose to waive confidentiality and allow certain information to be disclosed to third parties. For example, a party may want to share a settlement agreement with their attorney or financial advisor.

I'll mention below a certain well known case about breach of confidentiality (which has since been a TV series and now a stage show) but in other mediation news we look at steps making compulsory mediation ever more likely.

Another aspect of mediation is it remaining a voluntary process, steps are now being taken to make family mediation mandatory (it should be in civil as well IMHO), on my reading the proposals suggest referral to mediation will be mandatory not taking part. Ultimately no one can force you to engage in a process you don’t want to, if penal notices and contempt aren’t enough in family proceedings it hardly seems likely to be possible to force parties into mediation.

Hopefully making the costs threat more severe will encourage more parties but if what they are arguing about is finances is the court simply reducing the overall pot? The courts are overwhelmed and the more cases we can get into mediation the better for the more difficult cases where mediation cannot assist which need court intervention, and yes more cases to mediation does mean more business for me.

In Northern Ireland Noel Kelly, President of the Industrial Tribunals and Fair Employment Tribunal, has announced that employment dispute cases will be referred to judicial mediation before tribunal.

“This scheme will offer claimants the opportunity to sit down with their employers and a specially trained Employment Judge, in an informal space, and attempt to resolve the employment dispute without the need for long, protracted and often stressful litigation.”

That seems like a mandatory requirement as well, but it feels less like mediation and more arbitration to have a judge both ordering and then leading the sessions. Quoting the results of a similar scheme in the England and Wales tribunals system Noel added that 65% of those cases had been settled by mediation.

I’ve been involved in a number of employment disputes in my time for and as claimant and defendant and each and everyone could have been settled had the parties been able offered the proper opportunity to mediate as opposed to at the door of the court settling matters between counsel.

Back to the original topic of confidentiality and of course one reason mediation appeals is to celebrities (I’m unclear if the Vardy v Rooney case can now been known by its shorthand name but they made a conscious decision not to mediate – the fact I have to avoid using a now trademarked term tells you this was about money and status never about the breach of confidentiality at the heart of the case).

Similarly Depp v Heard every tiny piece of people’s interactions on display is of no assistance to either party but such was the choice, and the risks the parties were exposed to (cancelled contracts, loss of employability) were perhaps not considered in full before commencing the case. Those types of issues get discussed and examined in mediation but not in the public glare. Which is why mediation remains the best option even in civil cases.

The three pillars of mediation remain it’s voluntary (except apparently when it won’t be anymore), it’s confidential, the mediator is independent, by using those pillars to support your work the parties keep control, save costs, save time and energy and reduce stress. Finally this one is mediation, mediator jointly appointed, areas of discussion agreed and intention to be bound by the outcome.

In person or via electronic media as we’ve said before choose to mediate early and resolve your issues effectively, timeously, and with less stress and costs than going to your solicitor so you can get out choose a different path, not quite the road less travelled but perhaps the path less adversarial. You have an interest in the outcome the sooner you get round the mediation table the quicker you can move forward and avoid the grilling a cross examination in court would put you through.

By having a deep and meaningful discussions with parties the mediator elicits what the true “red-lines” are and where there is the potential for compromise, it is with this structured period of reflection that the parties are then able to reach an accord.

The flexible nature of mediation and the possible outcomes make it an ideal way to resolve disputes in an ever-changing world and the open nature of discussions in mediation whilst remaining confidential allows all sides to engage fully in the process and understand the needs of all involved allowing parties to reach a conclusion which both sides can live with and move on.

There are so many situations which could have been resolved by early intervention of mediation it continues to surprise me the lengths the public will go to avoid referral.

Whether you need a mediator to help out with a construction matter in the Northwest, or council’s plans in Cheshire, a civil mediator in London, a commercial mediator in Manchester, a dispute resolution for your family in Liverpool, a neighbourhood mediation in Stockport, then our mediators at Northwest Mediation can help.

Mediation is cheaper, quicker and less stressful than running any case to court, it can help with any dispute whether it's an employment issue or the sale at an under value of a property, a fight with a neighbour, family issues, commercial disputes, civil mediation or inheritance, wills and probate arguments contact me at Northwest Mediation on 0161 667 4418 or via email at Enquiries are free.

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With the continued backlog of cases mediation is now more than ever the best choice to find a resolution for your dispute.  Get your dispute resolved now so you can really concentrate on what’s import


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