Research paper on Confidentiality in Mediation

Introduction

Mediation refers to a process whereby the parties involved in a dispute identify the issues, then proceed to develop the necessary options, look at the alternatives available and eventually come to an agreement being assisted by a third party or mediator. It is basically an alternative to resolving disputes of two or more parties without necessarily going to court. One thing to note however, is the fact that the process of mediation can only take place if both parties involved in the dispute agree. The process is so confidential that the discussion terms need not be disclosed to anyone outside the parties involved. The mediator helps the two parties to come to an agreement. A mediator is not allowed to take sides, offer guidance or make any judgments but develops communication and builds a consensus of the parties. There are cases where the mediator is allowed to give his/her own view but with consent from the parties involved. At the end of it all, the mediator ensures that a solution has been found and all the parties are happy. The techniques used by the mediators depend on their training and skill to ensure that parties come to an agreement in a manner that is informed and voluntary. This method of solving disputes can be used in very many situations including family, consumer, contract and neighborhood disputes.

The dynamics, timetable and structure that mediation has cannot be found in any ordinary negotiations. The mediation process has several qualities like voluntary, collaborative, controlled, confidential, informed, satisfying and self-responsible, safe, balanced, neutral and impartial. Voluntary means one can leave his/her own pleasure either with or without a reason. The collaborative quality implies that all parties are motivated to solve issues together and come to agreements. Controlled means that each and every participant has the power to make a decision and nothing can be imposed on anybody. Informed aspect means that this mediation process gives the involved parties an opportunity to obtain and even incorporate advice and information from legal experts. The other quality is that of safe, balanced, neutral and impartiality. According to this quality, the mediator has a balanced and equal responsibility to assist either party and should not in any case favor any party or the outcome of the process. The mediator is obligated ethically to acknowledge any bias that is substantive on the discussion issues. Satisfying and self-responsible is another quality of mediation that is based on voluntarily participating on resolving issues, satisfaction as well as compliance are not elevated through courts but rather through mediation. The last quality which this research paper will focus on is confidential. Mediation is generally confidential by evidence, statute and contract as you agree and desire. It is required that the mediator should explain confidentiality and exceptions of the same therefore any meetings between the parties and the mediator should be well defined. Any ruling by the state that evidence which is prepared and used in the process of mediation is not confidential undermines the process.

Mediation as a process of solving conflicts is becoming a very popular way of resolving disputes, especially the commercial ones. In the United States, it is mostly connected with domestic disputes among others. In cases where the process does not succeed, the parties mostly resort to arbitration or sometimes litigation. There are various advantages of choosing mediation as a way of solving conflicts. One of the advantages is that it is less expensive and takes less time. Even though a mediator may charge a fee, it is not as expensive as that of an attorney and does not involve moving from case to case hence saves time. When you spend less money, it in return means less money is involved. Another advantage is that it offers flexible and multiple ways of resolving a dispute. In court cases, the parties get a resolution which leaves neither party happy. On the other hand, in mediation, parties can control the resolution which can be very unique to the issue or dispute. Mediation therefore results in a win/win situation. Mutual endeavor is also associated with mediation. In negotiations, parties focus on their positions but in mediation, parties are ready to come up with a solution which means that the parties are ready to move their positions. As mentioned earlier in the article, mediation takes place in the presence of a mediator who has been trained in matters of resolving conflicts and is thus neutral helping the parties to get an avenue to resolve disputes. Last but not least is that it is a process that is very confidential. Nobody apart from the parties and the mediator knows what has happened during the forum. It is so important that a mediator cannot be forced to testify in the court as to the progress of the process. There are exceptions to confidentiality in cases involving criminal acts or child abuse. This paper will mostly look at whether in the context of the mediation; the communications made are confidential in that they need not be disclosed in arbitration or litigation proceedings.

Literature Review

This part of the paper reviews into details the relevant literature regarding confidentiality in mediation. It is imperative to note that confidentiality has been proven to have significant outcomes in certain states, such as California State. Several literatures have common arguments concerning confidentiality of mediation and its success in law.

Bartens (2004) asserts that in order for family mediators to protect their clients as well as themselves from unlawful disclosure of a client’s admission, the mediator should embrace the principles established in Tarasoff vs. Regents of California University, when violence threats are presented by any of his clients. In this case, California’s Supreme Court gave a ruling that professionals of mental health have an obligation of protecting people who are threatened with bodily harm by any patient. The supreme court of California ruled that professionals not only have a duty to protect the patient, but also the individuals who are threatened by the patient. The ruling has since been embraced by a majority of the states in United States and has significantly influenced several jurisdictions elsewhere in the world.

A movement that is popular in applying alternative resolution of dispute exists, instead of allowing the state to handle such matters as the legal issues of a family through its process of litigation. The job of the mediator of the family is ensuring that agreements are facilitated between the parties instead of adjudicating decisions. Those who support mediation in family disputes harbor the fact that it is an imperative form of resolving disputes as compared to the process of litigation. Mediation heavily depends on the parties to come to a solution that is mutually acceptable (Bartens, 2004).

Bartens’ sentiments are echoed by Allen (2008), who talks about the success of several cases that were resolved through mediation. For instance, Cumbria Waste Management Ltd and Lakeland Waste Management Ltd vs. Baines Wilson (2008), that was heard in the Birmingham Mercantile Court by Judge Frances Kirkham is one of the cases that embraced the process of confidentiality of the mediation. When the judge was informed that the case should be resolved through confidentiality, the judge found it unreasonable. This is because it is not the judge’s duty to give mediation, but is a privilege entered into by both parties. Surprisingly, one of the parties did not agree to embrace the privilege of confidentiality. This case was being defended by the Department for Environment, Food and Rural Affairs (DEFRA).apparently, DEFRA did not give in to apply its possessed privilege and its right to confidentiality. The judge was only given the agreements of mediation but no documentation was tabled. The judge saw this as unreasonable and only wanted the mediators to have freedom and carry out mediations without fearing that their information would be disclosed to others. The judge viewed this as an exception to the legislation that confidentiality is not a bar where disclosure of materials would be done to other individuals. This was a bold decision which reinforced security of what takes place at mediations.

Harvard Law Review also acknowledges the fact that mediation is gaining popularity as the better option for adversarial justice. Similarly it is very important to properly define the extent to which privilege rules should offer mediation communications confidentiality. The atmosphere of trust is fostered by confidentiality which is fundamental in mediation. Under the law, it is not easy for a mediator to promise that all that is said in mediation will be confidential even when a party that is not satisfied decides to go to court to seek for testimony in regards to mediation. Since mediation is a form of negotiating for justice, all parties must come to a consensus in a voluntary manner. This ultimately implies that mediation plays a significant role in shaping both the discussion’s agenda and the consensus. Therefore, the mediator is depicted to be a catalyst that has the mandate of striving to coerce the clients (Harvard Law Review, 1984).

Furthermore, several literatures accord parties many advantages, when it comes to mediation. Breaching mediation is one area that many authors agree should not happen in any way. Powles (2001) asserts that while the process of mediation is a confidential matter, any communication to the mediator in private sessions should not be disseminated to other clients without their prior consent. This therefore implies that the mediators will achieve full trust from the parties involved. Powles continues to say that a proper dialogue should be established from the beginning as this is the best and less expensive way of resolving differences.

Cohen (2001) argues that mediators should be concerned with the situations when their clients encounter obstacles in their way of achieving self-determination which is a fundamental value in the process of mediation. Cohen continues to remark that the moment one party encounters difficulty in understanding the whole process of mediation, or is unable to actively participate in the process, then it is the duty of the mediator to explore these obstacles together with the party.

In the process of mediation, a party’s mental ability to comprehend the process as well as the discussion options in giving voluntary and informed agreement attained is referred to as capacity (Blank, 2001). This eventually implies that mediating disputes with individuals with limited capacity can be very challenging. Therefore, it is of great concern when parties of limited capacity are subjected to manipulative aspects. Mediators should ensure that this scenario does not occur (Waldman, 2001).

Confidentiality in mediation

One thing that is very central as indicated earlier is confidentiality. The parties should be able to communicate openly for a mediation to succeed. Confidentiality questions that may arise are complex and numerous and might not have been explored fully. The aim of this paper is not to answer all the questions but to note some of them and examine the authority of the United States in point. The question is how far confidentiality should extend. It is important to understand the considerations of the question of confidentiality in mediation. The first one is that the confidentiality encourages the parties involved to negotiate and come to an agreement. This helps avoid litigation or arbitration. The other consideration is one that inclines confidentiality based on the evidence produced to ensure that a fair decision is made. Legislation has been enacted by many jurisdictions to make mediation a confidential process.

Lawyers in California however say that confidentiality in the process of mediation is in jeopardy. It is in October 2002 that the California Court of Appeal held the raw materials that were prepared for a mediation process of a dispute of construction were to be discovered as sections 1120 and 1119 of the evidence code of California that protect communications in mediation from disclosure did not apply to the raw evidence The Attorneys in Genoveva Rojas v. Los Angeles Superior Court who represent the party involved want The California Supreme Court to reaffirm the confidentiality of these documents. This case came as a result of concerns raised by tenants about a leakage of water as well as mold in the building. Julie Coffin who was the owner of the building sued those who built it for defects in construction. The court issued an order for the parties involved to use mediation as away to settle their dispute. This case was later settled and the agreement provided that the terms had to be confidential together with their samples as well as consultants work. The tenants later sued the owner and the developer. The trial court then ruled that the documents which were submitted for the mediation process were considered in the State Evidence Code. The tenants went ahead to appeal but the court of appeal continued holding to the fact that privilege only applies to communications, negotiations, discussions and admissions that were designed to resolve the dispute through the process of mediation. Coffin argues that the designation of the privilege of mediation to be used in mediation should be interpreted to come to a resolution and holding otherwise contravenes the intent of the legislature. When we look at the United States, the schemes of confidentiality of mediation in California are very comprehensive. The provisions advocate for the production of evidence. The above case very well describes the nature of confidentiality in California’s Supreme Court (ADR News, 2003). Both the legislature and courts have embraced the use of mediation in resolving disputes in California. The statutes also foster the popularity of mediation. An example is section Four hundred and sixty five of the professions and Business code of California which states that encouragement of mediation helps to achieve more efficient and effective resolution of dispute in society. The courts of Appeal as well as the Ninth Circuit also have mediation programs that are well established. The importance of confidentiality in California took effect even before 2001.It was in 1998 that the Legislature consolidated the rules of confidentiality into one chapter for purposes of providing a comprehensive and standard set of rules that would apply to voluntary and court ordered mediations. The statutes of California also make anything communicated in regards to mediation to be confidential. Section 1119(a) of the code of evidence of California, says that no evidence or submission of anything in the mediation process is admissible and any disclosure of the evidence, will not be compelled in a given arbitration, any administrative, civil or any other proceeding that is noncriminal in which according to the law, one can be compelled to give evidence. Writings that result from the mediation process are made to be inadmissible and confidential in section 1119(b) of the same statute. The Uniform mediation Act of the state laws in section four also provides confidentiality in the process of mediation. This was also supported by the family court review.

Rules of Confidentiality

Before I look at the rules of confidentiality, it is important to note that before the parties are involved in a mediation process, they have to sign an agreement of confidentiality. In this agreement, all parties agree that they have a dispute, which they have to solve through mediation; that the parties involved release their mediator from any claims that would arise out of their failure to come to an agreement, that the mediator is not a definite indication that they would agree; any of the parties that forwards a claim for the mediator to produce the records or testify will indemnify the affected mediator of any expenses, costs, losses liabilities; that the mediator does not know any potential or actual conflicts of interest that might in turn affect the impartial ability of the mediator, the mediator is to be given all the necessary protection as in 1127-California Code of evidence; the agreement is also admissible in any future proceeding in order to prove that an agreement existed which is binding on the parties and is admissible according section 1123 of the California Evidence Code and last but not least is confidentiality where they agree that the mediation is according to California Code of Evidence Rule 408,1115-1128,1152, federal evidence rules and other sections of federal law and code of evidence counterparts. The last agreement which is the focus of discussion emphasizes that statements that are made during the process of mediation are supposed to be confidential. When this agreement is signed, the parties waive any potential and actual conflicts (Sourdin, 2005). Any breach of this agreement, therefore would result into injury that is irreparable.

The first rule of confidentiality looks at the definitions. Examples of these definitions include agreement, conciliation and the costs of the reference, days, dispute, mediation, nominee, preliminary conference and mediation. Most of the terms have been defined or described in the previous paragraphs but some have not. Another word for mediation is conciliation. The cost of the reference has the expenses and fee of the mediator/nominee/conciliator. Days refer to the working days except public holidays, Saturdays and Sundays. The disputes are the issues referred to conciliation. A preliminary conference is a meeting that has been appointed to deal with the administrative or procedural matters to do with mediation.

The second rule of confidentiality is the appointment of a mediator. This rule says that unless it is agreed in writing by the involved parties, mediation shall be carried out either by a person agreed between the parties or by a person nominated by the institute. It also indicates that the nominee shall give a written notice to the parties to do with the place and time of holding the conference and this should be within seven days of receiving this advice. At this juncture, the mediator may advise on the conditions that may include security for the expenses and fees. After the parties have accepted the conditions, the mediator or nominee shall then accept appointment. Rule number three is one of the applications of rules. It says that the rules are subject to any law that governs conciliation. In cases where the parties have chosen mediation as a way to resolve their conflict, they should then comply with the rules. From rule number four, procedure starts being seen. This rule is confidentiality. The advisers, parties and mediators shall not disclose any information during the mediation. They shall also use any disclosed information only during mediation and that they need to sign agreement confidentiality. The fifth rule looks at the role of the mediator. As per this rule, the mediator needs to be independent and to act impartially between the involved parties. The mediator also needs to assist the parties to come up with a solution that is mutually acceptable. This would involve, helping the parties to define the issues, come up with a procedure for resolution, and suggest resolution techniques act as a facilitator to direct the negotiations. A mediator may practice additional duties that may involve making suggestions and give opinions that would help to come up with a reasonable solution.

The next rule is the role of the parties involved. This indicates that these parties need to do all things required for a proper mediation process. Each party need to comply with directions made on the procedures for example, if not appearing, they need be represented by a person with full authority to settle the dispute. Rule number seven looks at the preliminary conference. It says that unless agreed otherwise, the conciliator needs to convene a conference soon after the dispute has been referenced. Termination of the conciliation is the next rule. This rule says that any party that wishes to terminate the mediation may do so through a written notice to the other party. Rule number nine looks at the costs and says that each party needs to pay its own costs unless agreed otherwise. Extension of the Period of Limitation is the next rule. This implies that just in case the period of limitation expires during the conciliation process, the parties can agree to extend the period by the number of days dating from the reference date of the dispute to termination date according to the rules. The next rule looks at the subsequent proceedings. In this rule, in case the dispute is not resolved, the conciliator should not accept to be appointed as an arbitrator without getting consent from the parties involved. This consent has to a written one. Counting of days is the other rule. This period begins on the day after a notice, proposal, communication or notification is received. The last rule is the rule of liability for omissions or acts. The parties involved need to agree that the conciliator, employees and officers of their institute are not liable to any of the parties for omission of their functions unless it is shown to be fraudulent.

Breaching Confidentiality

Confidentiality as per the professional ethics means the ability to keep information of a relationship which is professional that is given about or by an individual secret and secure from others. In this case the relationship is gained through mediation (Franklin, 2006). Confidentiality is very important as it helps in maintaining trust. Disclosure of this information results into a breach of confidentiality. There are certain scenarios when disclosure of information does not constitute a breach of confidentiality. They include cases where the professional suspects that that a person is in the process of harming others, is acting in an illegal way or is being exploited by others. In California, the Supreme Court of California had to look at exceptions to confidentiality. Section 1119 and 1121 support this fact. The Court ruled that a mediator may report the failure of a party to the court. The court looked at two previous cases. One of them was the Rinaker vs. superior court case that involved harassment between juveniles and a victim who were involved in an incident of throwing of rocks. The hearing subjects were the minors claimed that the statements of the victims during mediation were different from testimony given during hearing. The court of appeal ruled that the confidentiality right must yield to the minors’ rights to go ahead and put on a defense in order to confront and cross examine the witness of the victim. In this case, the court noted that the evidence on the events and statements used during mediation did not have any comparable right. This is an example of a case where disclosure is not a breach of confidentiality. According to Bartens (2004), there are two factors that significantly determine whether confidentiality can be breached; identifying the victim and the likeliness of the potential physical harm.

Consequences of breaching confidentiality

When a party breaches confidentiality, then there can either be positive or negative consequences. The positive consequences of breaching confidentiality are; suspicion on any abuse or negligence can be investigated; this in turn implies that the possibility of any abuse and negligence in may be avoided in future. Any plan in committing suicide may also be prevented before it happens. Any necessary interventions can be brought up for any party to be assisted in such areas (Springhouse, 2000).

On the other hand, according to Springhouse, (2000), the negative consequences are as follows; stern disciplinary action may be given to a health worker who breached the confidentiality of the patient. The client may suffer from emotional distress and embarrassment. An irreversible damage may be encountered by the relationship between the health worker and the patient. Finally, the client may decide to take legal action against the health care worker as well as the institution. The institution may be obliged to pay for the damages caused by the health care worker.

Ethics and standards for behaving professionally are vital when it comes to breaching confidentiality. There are security mechanisms that are able to offer protection to the data of the patient and it is ethical that the staff correctly and consistently make good use of them. Breaching confidentiality results in very costly and time consuming legal actions that are taken against the institutions that give healthcare services. Therefore, it is imperative to comprehend and adhere to the institution’s laid down policies and guidelines in order to avoid being referred to as being unethical. Cohen (2001) asserts that the code of ethics for mediators refers to the obligation of the mediators to the parties in a consistent manner, not to the representatives. Despite the fact that parties are represented, the mediation process is still in existence for them and not for the advocates.

Conclusion

Confidentiality in mediation is an important aspect and should be accorded much attention. Mediators should strive in ensuring that strict adherence to confidentiality is maintained. When a family mediator decides to breach confidentiality between him and the client, when a client poses physical harm to the other, the family mediator should be at the forefront of ensuring that strict principles of mediation are followed, thus an informed decision is made. Confidentiality in the mediation process that has been widely successful in California should make significant ways to other States.