Confidentiality and the protection of communications made during mediation is considered a key and integral component of the mediation process. Knowing that the process is private and off the record allows the disputants to open up and have a free and frank exchange about what is really going on. If employees fear that notes will find their way into a personnel file or that what they said will be used against them later on, they will not be open and candid.
However, mediation is not confidential by definition. No legal privilege exists between the mediator and the disputants similar to that between an attorney and client or doctor and patient. While privacy of communication is seen as an ideal condition for the process to work it is not an absolute necessity.
The expectation that communications made during the mediation will be privileged from disclosure is typically achieved through a written agreement between the disputants and the mediator. These agreements are either provided by external professional mediators or through policy documents associated with an internal mediation program. They define the scope and limitations of the confidentiality agreed upon.
Limitations to confidentiality
A common assumption made when a confidentiality agreement is signed, is that all communications in mediation will be confidential. Even where laws have been passed to protect confidentiality there are limitations. In fact it is good practice for mediators to clearly indicate the limits of the confidentiality in the mediation agreement. For example, child abuse, threats of imminent harm to others and admissions of criminal activities are often excluded from protection in confidentiality agreements. In some situations mediators may be required to actually report something, and in others to only testify after being questioned or subpoenaed.
In a workplace setting it may be prudent to craft additional exceptions to cover knowledge of unlawful employment activity such as harassment. This may be important where internal mediators are used as the organization may be construed as having been put on notice for purposes of harassment legislation. Even organizations that conduct their mediations through an independent ombuds need to consider this question carefully. In fact these concerns may lead organizations to use external mediators who are not full time employees of the organization.
Mediation programs need to be monitored for efficiency and satisfaction. Confidentiality rules should not preclude responsible, statistical monitoring and evaluation. After the mediation is over, it is normal to report whether or not there has been a settlement. With the consent of the disputants the terms of any agreement are often reported to peers and supervisors on a need to know basis. Again, these exceptions should be detailed in a written mediation agreement or policy statement.
Beyond these formal limitations, freedom to communicate to a participants spouse, friends, and advisors is often taken for granted. Again, if this is expected, it should be clearly acknowledged as another exception.
Most literature focuses on the disclosure of information to the courts, as when a mediator is subpoenaed to testify in an employment discrimination case. Where no specific law protects the confidentiality of the mediation process, evidentiary rules may exist that protect settlement discussions and offers of settlement. The courts weigh the advantage of getting access to relevant evidence to decide a contested matter against the value placed on promoting settlement. There is no guarantee that the courts will honor the agreement.
Confidentiality in the law
In California, recent amendments to the evidence code protect the sanctity of communications made during mediation. Mediators are not competent to testify in subsequent civil proceedings, and are limited to reporting whether an agreement was reached. Not only are mediators prohibited from testifying, but all participants are prohibited as well. Where evidence is given in breach of these provisions it is grounds for vacating or modifying the decision and granting a new hearing. The protection provided is limited to civil proceedings and there are no real remedies for a breach of confidentiality if the matter remains in-house other than general actions for breach of contract or tort.
More recently the National Conference of Commissioners on Uniform State Laws approved the Uniform Mediation Act. The Act will give guidance to States contemplating legislation to regulate confidentiality in mediation. It provides that all mediation communications are confidential to the extent agreed by the parties or provided by other laws or rule of the State. However, where the California Code includes labor/management mediation and peer mediation, the Uniform Mediation Act does not.
Employees in the federal sector are covered the Administrative Dispute Resolution Act of 1996. In addition to promoting the use of Alternative Dispute Resolution in federal agencies it contains detailed provisions relating to confidentially.
In general, mediators and participants are prohibited from disclosing communications made during the mediation unless the communication falls into one of six exceptions:
- If all parties and the mediator agree in writing to the disclosure
- If the communication has already been made public
- If there is a statute that requires disclosure, and there is no other person to make it public
- If necessary to prevent a manifest injustice
- If necessary to establish a violation of law
- If necessary to prevent harm to the public health and safety.
Participants are also permitted to show that a settlement agreement was reached and the terms of that agreement. An unusual provision is that participants are not prohibited from disclosing communications that are made to all in a joint session. This differs from traditional mediation practices in the private sector.
Confidentiality in the Caucus
Another important dimension of confidentiality is the mediator practice of meeting separately with the disputants and keeping communications made in private to a mediator confidential. This situation arises where the mediator holds separate meetings or caucus with the participants. Whether or not the mediator will reveal information disclosed in caucus is a matter to be agreed upon. The norm is for all such communications to be kept strictly confidential.
Professional mediation associations place a high value on confidentiality, and prohibit mediator disclosure of information to others when confidentiality is requested. They encourage the use of confidentiality agreements that describe the scope and limitations of confidentiality in the context of the law.
The former Society of Professionals in Dispute Resolution (it has now merged with the Academy of Family Mediators and the Conflict Resolution Education Network to become the largest conflict resolution member association: The Association for Conflict Resolution), made the following recommendations to organizations setting up mediation programs:
"The Employer should protect the privacy of all disputants and assure confidentiality of the conflict management processes to the fullest extent allowed by law. Those serving in a neutral capacity, including ombuds, mediators and intake personnel, should not be asked or permitted to reveal confidential communications. They should not be asked or permitted to comment or make recommendations outside the conflict management process. Disputants should be informed when limited disclosure will be necessary to authorize or implement the settlement agreement. Permission may be requested for limited disclosure for research and evaluation, within constraints of the ethical obligations of neutrals. An explicit confidentiality agreement is useful to advise participants of their rights under organizational policy and relevant law. " (Guidelines for the Design of Integrated Conflict Management Systems, Spidr, 2000)
Human Resource managers thinking of using mediation services, whether on an ad hoc basis or through an internal peer program need to give the question of confidentiality serious consideration. The best advice is to develop a policy that is clear about expectations, scope and limitations. Let your employees know what they are getting into when they agree to mediate. Disputants should not be misled as to what will be confidential before, during and after the mediation process.