Origins of Confidentiality in Mediation

Keith Strutt - Regional Managing Director, Driver Trett UK looks at the practical effects of confidentiality in the mediation process.

Mediation is a practical process of assisted negotiation which has confidentiality at its heart.

The promotion of mediation

Mediation sits against the backdrop of ever increasing time and cost for the formal adjudication of disputes, in either the courts or arbitration; along with the suggestion that the general populace – as opposed to those with significant wealth or access to state support for litigation – are effectively barred from access to formal assistance in settling their disputes¹. The ancient and widely used method of dispute resolution, mediation, has been co-opted into the public policy of many countries in an attempt to ‘improve’ access to justice. In the UK, the need to improve the quality and delivery of access to dispute resolution was made in support of alternative dispute resolution (ADR) in general (and by implication mediation) by Lord Woolf and his report ‘Access to Justice’².

The process of mediation has wide spread support across the world. From governments of all types, from command to capitalist economies, and from common law to civil law jurisdictions; and just about every point in between.

It seems clear that the attraction of a flexible, fast, and cost-effective process of dispute resolution is widely appreciated; not least by parties for whom the confidential nature of their private dispute leads them toward a process whose very nature, it seems, relies on confidence and confidentiality. The ubiquity of confidentiality and mediation appears widely accepted but perhaps a few authorities would be helpful as an illustration. The Commission for the European Communities: Green Paper on alternative dispute resolution in civil and commercial law³ at section 3.2.2.1 states:

‘Confidentiality appears to be the key to success of ADRs because it helps guarantee the frankness of the parties and the sincerity of the communications exchanged in the course of the procedure’.

The court, in support of confidentiality in ADR, in Halsey v Milton Keynes⁴, stated:

‘We make it clear at the outset that it was common ground before us (and we accept) that the parties are entitled in an ADR to adopt whatever position they wish, and if as a result the dispute is not settled, that is not a matter for the court. As submitted by the Law Society, if the integrity and confidentiality of the process is to be respected, the court should not know, and therefore should not investigate, why the process did not result in agreement’.

The need for confidentiality

So, it appears that the majority are convinced about the need for confidentiality in mediation, but why should this be so? The most widely used of the formal dispute resolution processes, litigation in the courts⁵, is a public process and appears none the worse for it. The key to the answer appears to lie in an appreciation of what mediation actually is and what it sets out to achieve.

Mediation objectives

Mediation is not a public forum; neither does it set out to establish rights and obligations in law. It does not attempt to provide a correct answer to the problem at hand and it most certainly does not attempt to find and impose a ‘just’ solution.

Mediation is, at its heart, consensual assisted negotiation. It is the logical extension of the first port of call in dispute resolution, that being negotiation. When negotiation has failed (although in truth it is the parties that fail), mediation can be seen as a continuation of the process – or as is often the case, the first step when it is clear that the normal process of discussion will never lead to a settlement.

A neutral third-party joins the negotiations and assists the parties to maintain communication and, when appropriate, gently assist the participants to evaluate their own position, make offers, and consider counter offers. The whole process is akin to a complex dance through the issues; the skilful mediator helping parties form realistic views, make offers of settlement from which they can gradually learn each other’s position and expectations, and explore alternative solutions to the problem.

The objective is to enable the parties to settle, to arrive at not the right answer, but at an answer both can live with, even if they do not particularly like the final outcome.

Confidence and confidentiality

In a consensual process, where the participants have entered into the process freely⁶, choose to remain in the process, and continue to support it after the formal mediation through to implementation of the agreement; the confidence of the parties rests in large part in the confidences formed through the process. By this I mean that the complex interplay of negotiation is assisted and informed by the ability of the parties, through their neutral, to explore through offer and counter offer the path to settlement.

During the process, it is recognised that parties will often say and admit things that they do not actually believe or agree with; this is with the objective of finding a commercial settlement, one which recognises the advantages of early resolution to a dispute enabling the protagonists to return to their normal business.

Commercial settlement here can incorporate (as the process is privileged) some form of hybrid justice – restorative and financial – as opposed to financial alone⁷. The confidentiality that comes from privilege (and I suggest, realistically, no other comparable ADR method⁸) provides the ability to offer things other than money alone. Perhaps a new contract, prompt payment on another, return of some equipment, a certificate, or even an apology. Whatever is seen as the just answer.⁹

How are the duties that arise enforced?

In the first instance, the duty of confidentiality should be enforced by the confidentiality agreement that all participants to the mediation have signed. This would be the main method of enforcing confidentiality against the other party to the mediation (as opposed to party representatives and the mediator).

Conclusions

There can be no reasonable doubt that mediation is, if not entirely dependent, immeasurably improved in effectiveness by the ability of the parties to exchange candid views and make admissions as commercial gestures with the purpose of settling, in ways that they would not normally do.

By recognising the nature of the information contained within the documents and exchanges, and most importantly recognising that the information is made up of different – separate – elements and attributes, it is possible for supervising jurisdictions to support mediation by choosing to use only those elements necessary to give effect to the settlement and support the process. For instance, there is no need to go behind a settlement and investigate what led to it to assess whether an agreement was reached.

Confidentiality is at the heart of the mediation process and, while the flexibility, speed, and low cost of mediation need to be maintained, it cannot be at the expense of confidentiality.

However, as with most things in life, there is a balance to be struck; the needs of justice and mediation need to be balanced on the double-edged sword that is confidentiality. 

¹ See ‘Alternative Dispute Resolution Processes within the Framework of the World Wide Access-to-Justice Movement’; Mauro Cappelletti: The Modern Law Review, Vol 56, Nr3, May 1993; see also ‘Getting Disputes Resolved:Designing Systems to Cut the Costs of Conflicts’ William Uri, Jeanne M Bret and Stephen Goldberg, 1988.

² ACCESS TO JUSTICE Final Report - By The Right Honourable the Lord Woolf, Master of the Rolls - JULY 1996.

³ Commission of the European Communities: Green Paper on Alternative Dispute Resolution in Civil and Commercial Law [2002] COM(2002) 196 final.

⁴ Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576.

⁵ In the UK the overwhelming choice of dispute resolution forum is for the use of a court or similar; of the claimants who choose to go to a form of dispute resolution 70% choose a Magistrates Court, County Court, The High Court or other court. Source: ‘Paths to Justice; the National Centre for Social Research’ Prof H Glenn University College London [1999] page 152.

⁶ At this point the reader may be tempted to cry foul, but even court annexed mediation and some of the more robust inducements to mediate – English cost sanctions for unreasonable refusal, US court ordered mediation, etc. still rely on the basic consent of the parties to remain in the mediation and to implement the agreement.

⁷ The justice here being an answer that is just solely in the eyes of the parties, without the wider public domain judgement of what is seen to be acceptable public policy or meeting socio-political mores.

⁸ The nature of Mediation being private, explorative and sufficiently flexible for the parties to consider all the settlement options and combinations available, safe in the knowledge that they are not bound until they agree to be.

⁹ Apology is an often overlooked and powerful ally in achieving settlements – see E. Cole, Apology, Forgiveness and Moral Repair (2008)22(4) Ethics & International Affairs and for how to do it properly Apt Apologies by Joel Marks is Professor of Philosophy at the University of New Haven in West Haven, Connecticut, U.S.A from Philosophy Now Magazine, issue 30 Moral Moments.