First published in the Virginia Mediation Network online newsletter in Fall, 2007
Confidentiality in mediation is based upon a complex combination of constitutional rights including the First Amendment: free speech/the right of the public to know; the Fourth Amendment: the right to be left alone; the Fifth Amendment: granting protection from incriminating oneself; and the Fourteenth Amendment: liberty rights to make individual and family decisions. In addition, tort law protects parties from invasion of privacy by others. In mediation and other Alternative Dispute Resolution processes, these legal rights of the parties are protected. Use of the term, alternative dispute resolution has been misleading. Mediation always operates “in the shadow of the law.” There should be no conflict between ADR and preservation of parties’ rights—and therefore mediators need to know what these rights are. In this context, participants in mediation are offered and believe themselves to have, the option to maintain privacy regarding information exchanged in mediation. In reality there are a myriad of ways the court can overturn confidentiality agreements and there is no rule that gives communication with mediators the confidentiality privilege of physicians, attorneys and clergy. Indeed, there is no way to assure parties’ of confidentiality in mediation.
The word privacy does not actually appear in the U.S. Constitution. The Fourth Amendment protects landowners from unreasonable search and seizure by the government. The protection of private property is the most direct assertion of the right to privacy in the U.S. Constitution. In an article in Harvard Law Review in 1890, Louis Brandeis and Samuel Warren were the first to define a personal right to privacy as separate from property. Brandeis and Warren based the right of privacy on the notion of “inviolate personality.” The criterion for protection was the general right to the immunity of the person–the right to one’s own personality. Protection against invasion by private individuals, friends, neighbors, employers and the press, puts privacy cases into the category of tort law. Unlike libel cases, in a privacy case the information revealed may be proved true, and still be judged an offense. Legal scholars for over two hundred years have struggled with the inherent contradiction between freedom of speech, in the First Amendment (particularly in relation to the press), and the individual right to privacy. In mediation we see first hand the Constitutional conflict between privacy and speech, between the right to be let alone and the right to know.
The Fifth Amendment protects the right not to incriminate oneself. Stemming from the days before the emergence of common law which began to offer some individual rights and protections, those accused could be subjected to torture until they confessed or died. U.S. law has recognized the privilege of confidentiality between attorneys and clients, physicians and patients, and priest and penitents. An ongoing controversy about whether mediators should be granted the same privilege remains unresolved. Statutes excluding mediators from testifying vary from state to state and can be trumped by federal laws.
The right to raise one’s children as a privacy right has been interpreted through the protection of “liberty” in the Fourteenth Amendment. About a hundred years ago the court began to interpret “liberty” as including certain fundamental rights, based on due process and equal protection, declaring that no person will be denied “life, liberty or property, without due process of law.” These rights are held to be “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if sacrificed.” Liberty rights include marriage, procreation, contraception, family relationships, child-rearing, education, abortion and consensual sexual activity between adults. Justice O’Connor reinforced the concept of personal liberty when she said in Planned Parenthood v. Casey, “…At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” However, parenting rights, while granted as fundamental, are not absolute. The state has for some time designated itself as the arbiter of the child’s best interests under the doctrine of parens patriae. The state may also assume authority over incapacitated adults.
Although mediation continues to be promoted as an “alternative” to the law, mediators are representing the court by giving legal information in the agreement to mediate, particularly about confidentiality. Legal information that must be given by mediators is one example of how mediation operates “in the shadow of the law.” Exceptions to confidentiality in the requirement to report serious allegations of child abuse or neglect or a party’s planning of a crime, are also instances in which mediators are bound to report to the state. Mediators are required to determine that the parties have the capacity to make an informed decision about confidentiality, and in so doing also represent the authority of the state. Thus mediation and other ADR processes are taking place at social/legal junctures where, what is and is not confidential involves life and death decisions.
The court has always had the power to override confidentiality. The job of the court is to weigh the needs and interests of the society against individual needs and rights. The Federal Administrative Dispute Resolution Act spells this out
“Confidentiality can be overridden when ‘a court determines that such testimony is necessary to…prevent harm to the public health and safety of sufficient magnitude in the particular case outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential.’” §5 U.S.C. 574(a)(4) and (b)(5).
Since the passage of the USA PATRIOT Act  in October, 2001 ostensibly as a response to the threat of “terrorism,” the court’s power to set aside confidentiality is greatly expanded. This Act passed both houses of Congress with little debate. Under USAPA §412 the FBI can monitor religious and political groups without evidence of wrongdoing, greatly reducing the standard for surveillance from “probable cause.” While no specific mention of confidentiality in mediation is noted in the more than three hundred page Act, the sanctioning of broad government power to invade privacy in Section 215,  is more than enough to rescind it. Mediators, though required to inform parties of the exceptions to confidentiality, may be unaware that the PATRIOT ACT can nullify any agreement to confidentiality the parties make. Since informed consent is the basis for party self-determination, it is incumbent upon mediators to include the USA PATRIOT Act in discussing confidentiality. Additional threats to confidentiality now in place as a result of the PATRIOT Act make it imperative for mediators to be informed about its impact on mediation in order to give this information to parties.
Parties are asked to “disclose all relevant information” in agreeing to mediate, and at the same time if bound by confidentiality, are agreeing not to reveal what is said in the mediation, in court. This is an area in mediation (as well as law) that is murky. The question of what is considered “relevant” information regarding disclosure, even when confidentiality has been agreed to, can open the door for “discovery” to take place after the fact. Parents have a right to know: what environment is their child in? Who is responsible for them? How can they be reached? As separate individuals after divorce, parties have a right to conduct their lives as they choose. While children have no privacy rights, after the parents’ separation children are in the difficult position of maintaining the privacy of the parents as they go back and forth. As the children begin to navigate between two worlds and two realities, they are left to fend for themselves in figuring out what information to share and what to withhold.
What information is necessary for parents to know and what is private? Should children be put in the position to make that decision? Understanding the Constitutional right to privacy is not an abstraction, but an issue parents need to sort out. Without clarity, children feel confused and apprehensive about what they can and cannot say to each parent as they attempt to adjust to a variety of shared parenting arrangements. While issues involving the child’s environment are legitimate, it is not difficult to see how privacy rights can easily be lost when a family is splitting apart. As the separated parents resume the right to define their individual identities, they inevitably encounter the longstanding debate among Constitutional scholars: what one sees as public, the other may see as private.
In theory, confidentiality in mediation is an application of the right to privacy that allows parties to control information even in relation to the court. Therefore the mediator must convey all relevant legal information regarding confidentiality prior to the mediation. This information is necessary in order for the parties to exercise informed consent which is the basis for self-determination. Self-determination is one of the key elements that defines mediation. Mediators are required to fully explain and be sure the parties understand, the legal consequences of deciding whether or not to waive confidentiality in relation to the court, and to establish a contractual agreement about confidentiality regarding all others. In this capacity the mediator acts as a representative of the court, referencing the law by imparting legal information. While mediation can provide the opportunity for parties to maintain control over information, mediators would better serve parties by being well informed about laws such as the USA PATRIOT ACT, that can nullify parties’ decisions.
1 parens patriae (paa-rens pat-tree-eye) n. Latin for “father of his country,” the term for the doctrine that the government is the ultimate guardian of all people under a disability, especially children, whose care is only “entrusted” to their parents. Under this doctrine, in a divorce action or a guardianship application the court retains jurisdiction until the child is 18 years old, and a judge may change custody, child support or other rulings affecting the child’s well-being, no matter what the parents may have agreed or the court previously decided. (http://dictionary.law.com/default2.asp?selected=1444&bold=%7C%7C%7C%7C)
2 [H. R. 3162 IN THE SENATE OF THE UNITED STATES October 24, 2001 “To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, This Act may be cited as the `Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.”]
3 SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT. Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following: `SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.
`(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
`(2) An investigation conducted under this section shall–
`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
`(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
`(b) Each application under this section–
`(1) shall be made to–
`(A) a judge of the court established by section 103(a); or
`(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.
`(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).
`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.
`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.
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