The A-Z of Mediation: Disclosure

Scott McIver Articles, The A-Z of Mediation

The disclosure and non-disclosure of information are both important aspects of the mediation process.

On one hand, information is necessary to resolve the conflict. Mediation is effective because it is a way to get thoughts and feelings out into the open, in order to create understanding and empathy between the participants.

Because of this, we want the participants to willingly share information with each other and ourselves. We work towards this through “active listening”, hoping to build trust and establishing rapport. This aids in creating an environment in which everybody feels comfortable and confident in sharing information.

However, mediation also promises confidentiality and non-disclosure, which is often included in a ‘Code of Practice‘. It is one of the main benefits of this resolution method, allowing conflict to be resolved behind closed doors with no fear of repercussions.

It is because of this that mediation providers will often get the disputants to sign a confidentiality agreement during the course of the mediation. This will outline that information should not be shared outside of the process, although the agreement is not a legally-binding document.

As such, mediators play their own role in maintaining this. Due to the nature and structure of mediation, we must remain vigilant so as to not breach confidentiality, either knowingly or unknowingly.

Non-disclosure must therefore be included in:

Individual meeting – individual meeting – Information shared in the one-on-one meetings stays between that participant and the mediator. We cannot take information from that meeting into individual meetings with others e.g. asking for Party B’s opinion on what Party A has already shared in their meeting.

Individual meetings – joint meeting – Likewise, information from any of the individual sessions cannot be brought up in the joint session without the participant’s consent. Whilst the mediator may know about it already, we cannot push the participants into revealing information.

Building of agreement points – When building the agreement, the only input comes from the participants. We can not suggest or put words into their mouths – we are merely facilitating the points taking shape. This also helps the longevity of the agreement as they will be more likely to stick to what they have created themselves.

Sharing of the agreement – The only people guaranteed to receive a copy of the agreement are the participants. It may be the case that even the referrer or their manager won’t see what has been agreed. Who it is shared with is decided entirely by the participants.

In addition, mediators also take precautionary steps to help with this. Many mediators choose to not make notes during the mediation, so that nothing gets physically carried in to the next stage of the process. However, if notes do get taken down for purposes of memory, they are sure to be destroyed after. This way, they cannot be seen by anyone else besides the mediator.

Despite all of this, there are exceptions as to when confidentiality could, and should, be breached. Due to the extreme and potentially harmful nature of these situations, we are obliged to end the mediation and inform the relevant authorities.

These exceptions are:

• Threat of harm to others
• Threat of harm to children
• Admission or indication of terrorism
• Admission or indication of money laundering

Confidentiality doesn’t just protect the participants either – it is also in place to protect the mediator once the case has concluded. The confidentiality agreement would state that the mediator cannot be used to testify in court proceedings (although there have been exceptions) and that any voluntary agreements made in the mediation are inadmissible by law.

This prevents the mediator from being put into a situation where they don’t want to be, either personally or professionally, and ensures that confidentiality and non-disclosure benefits everyone involved in the process.

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