Welcome to Day 4 of my Mediation blog, to help mark and promote Mediation Awareness week. Today, I’m looking at the Confidentiality of Mediation and why this is so important in any attempt to reach settlement.
Particularly once things ‘go legal’ , people can be nervous as to what they say to other parties involved in the conflict. There is understandably a fear that what they say in negotiations might be used in Court against them, used in other ways, or released to third parties, competitors or the media.
The sum total of what happens at a mediation, including the private sessions with a mediator, lawyer-only meetings , and the plenary sessions with everyone, is strictly confidential. That means that unless everyone agrees to information being released, it stays under wraps.
Any mediator worth their salt will have circulated, and insisted upon the parties signing, a mediation agreement. This will usually bind anyone attending, including family, friends, solicitors, and observers, to the terms which will include confidentiality.
That confidentiality is firmly established at the outset of a mediation is helpful in a number of ways. The most important I think is that it allows people to be candid in what they say. People can vent, and say what’s really on their mind. This can help clear the air, especially where there is a long history of the dispute and, regardless of how it started, it has become personal.
The confidentiality of the mediation process also allows people to ‘test-drive’ ideas of settlement.
For example, whilst a dispute in Court might involve payment of a debt, settlement options can be more varied than a simple offer of a figure in full and final settlement. Depending on what the parties want, mediation can allow frank discussion about what people feel went wrong, and what they want going forward. It is entirely possible that, with a bit of help from the mediator, an arrangement is reached where by a debt is paid with a lump sum to begin with, followed by further instalments, and with an ongoing business relationship between the parties, but with a new understanding about what really matters to each.
This may not be desirable or possible in every case, but the point is if there exists one of many possible arrangements which does work for all parties, it is more likely to be found in the context of mediation.
Many of the mediations I have been involved with, regardless of whether they ended with a settlement or not, made significant progress towards a settlement because of key information that was shared in the course of the mediation. The mediator is uniquely placed to spot information gaps and whilst he or she will of course only share information where authorised, they can always say ‘do you think it would be helpful for the other side to know that?‘ This tool of the mediator is very useful and sometimes elements of a dispute disappear once key information is shared.
One might think this information sharing would happen in the litigation process but, sadly, it does not happen as effectively as it might. Part of the reason is that the litigation process does not lend itself to asking questions not directly related to the issues before the Court. A good lawyer, endeavouring to acting in the best interests of his or her client, will advise on the benefits of alternative dispute resolution in any case. But there are few forums that enable the level of candid discussion between all parties which might lead to settlement, as effectively as at a mediation.
Tomorrow is the last instalment of my Mediation blog, and I will be looking at the Without Prejudice rule, what it means and how it applies to Mediation.
Courage is what it takes to stand up and speak. Courage is also what it takes to sit down and listen. - Winston Churchill