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Although the drafting committee of the Uniform Mediation Act (UMA) has decided to extend its work for another year before proposing a uniform act, this should not be taken as evidence that the “powers that be” in the mediation field feel any less strongly about the need for confidentiality protection. Those involved in employment mediation need to understand the strong policy reasons for confidentiality and to think about the possible practical limitations, even when statutory protection exists. The policy concerns behind protecting confidentiality are visible in the language of the March 2000 draft of the UMA:
In applying and construing this [Act], consideration must be given to: (b) the need to promote the candor of disputants and mediators through the protection of confidentiality, subject only to overwhelming need for disclosure to accommodate compelling and specific societal purposes . . . (Section 2, Application and Construction)

The Reporter’s Working Notes discuss this candor as follows:

Mediators typically promote a candid and informal exchange regarding events in the past, as well as the disputants’ perceptions of and attitudes toward these events, and encourage disputants to think constructively and creatively about ways in which their differences might be resolved. This frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment through later court proceedings and other adjudicatory processes. (emphasis added)

In a later paragraph, the Reporter’s Working Notes continue:

The drafters also recognize that public confidence in and the voluntary use of mediation can be expected to expand if people have confidence that the mediator will not take sides or disclose their statements . . . (emphasis added)

Employers recognize the distinct advantage that can accrue from mediated settlements, particularly when important privacy interests can be accommodated through confidential mediation proceedings. Given the importance of confidentiality, however, employers are well advised to keep in mind some practical limitations on confidentiality: Can the claim of mediation confidentiality measure up in logic, practice or the reasonable expectations of the parties and the public? KEEPING IT FROM THE OTHER SIDE Confidentiality can involve two quite different sets of concerns. Most negotiators usually think of keeping information confidential from the other side when they engage in mediation. Indeed, most mediation trainings suggest that mediators use language such as, “I will keep everything you tell me in confidence, unless you tell me it can be disclosed,” as a central feature of mediation orientation. In practice, however, there may be no way actually to follow this and still practice the skill of mediation. While mediators may be able to keep from disclosing many specifics, there are inherent hints in anything the mediator says that make the hermetic concept of confidentiality untenable. Mediators cannot avoid giving certain verbal and nonverbal cues, especially when using a caucus model of mediation. The other party, especially if competently represented, doesn’t ignore these. For example, when the mediator asks specifics, the probability if not the details of the other party’s interest in that particular line of questioning is betrayed. Also, any competent negotiator will draw inferences from “the dog that did not bark,” such as proposals, arguments or questions that were anticipated from the opponent but that are not raised by the mediator. Of course, these inadvertent signals become stronger as the mediator takes on more of a role in the formulation of proposals. Employers often use this feature of mediation deliberately to explore ideas without committing to them. This kind of half-disclosure is, arguably, one of the key features of assisted negotiation. It allows parties who distrust each other to work together through a mediator. To claim total mediation confidentiality under these circumstances, however, is to claim too much. Perhaps what mediation actually offers, vis-a-vis the other party, rather than confidentiality is something like “non-attributability.” A similar problem arises with documents. Often, a term of a written mediation agreement, or even a statute or court rule, runs something like this: “Any statements made or documents produced for the mediation are not admissible at trial, unless the information can be discovered through some means other than the mediation itself.” On its face, this sounds like a fairly strong protection. But at a minimum, if the case does not settle, then it is likely that an opposing attorney’s attention now has been drawn to either the existence, or a possible different interpretation, of certain documentation. Add lawyerly creativity into the mix, and the exception easily can come to overwhelm the rule. KEEPING IT IN THE ROOM The second set of concerns arises when someone wants information kept confidential from those outside the negotiations. Mediators may not, in fact, be able to deliver on claims of keeping things secret. There are at least two types of circumstances under which it seems unlikely that confidences will be kept to the degree the parties routinely are led to expect. Under both of these, however, the result is presumptively benign, or even in parties’ long-term interest. Advice-seeking. The first is advice-seeking. In mediator work groups, it is common for a “mediator with a problem” to turn to another for advice. The parties may not be told this occurs. Yet reasonable expectations of the parties might, in fact, dictate this as a form of professionalism. It has a logical analogy to customary practice in older professions, such as medicine. Just about everybody who has ever stood in a hospital corridor knows that the standard claim of confidentiality in the doctor-patient relationship is subject, de facto, to such advice-seeking. Its value to the patient is obvious, and nobody objects so long as it doesn’t go further. Study, evaluation, research. The second set of circumstances in which promises of confidentiality can be overblown deals with study, evaluation and research. It is virtually impossible for the mediation profession to advance without practitioner and theorist discussion of mediated cases (usually absent specific identifying data, of course) to ground the discussion of problems and principles. These rich discussions about cases, commonly held without permission from the parties, generally offer great benefit for parties in the long run. Would the parties have agreed even to this limited degree of disclosure? Although we badly need more research into many aspects of our field, as well as more collaboration between researchers and practitioners, much of this work will require mediators to disclose case data. We thus may run a risk with the parties as a result of sharing data. The risk can be reduced by refusing to be involved in research and evaluation — hardly, one would think, in the parties’ interest — or perhaps it can be reduced by appropriately rewording our promises. WHAT’S TO BE DONE? Disclosure of arguably confidential material is something that few programs or mediators are likely to advertise. The extent of the problem is therefore murky. On a general level, better-elaborated principles of ethics for the field are a matter of strong current interest in the CPR/Georgetown Ethics Commission, the ABA Ethics 2000 effort and others. Together with the proposed Uniform Mediation Act, it is hoped these will provide improved policy and practical guidance to mediators and parties. On a less complex level, the mediation field fundamentally is committed to improving communication, not bottling it up. Sophisticated parties in employment disputes probably know “in their bones” about the problems discussed here. Where necessary, the issue should be discussed between parties and mediators together in the mediation. But mediators should be able to describe what they do accurately; parties, in their own interest, should accept and recognize that as care and candor. This article is excerpted with permission from CCH’s Journal of Alternate Dispute Resolution in Employment, Fall 2000 Edition. By Guest Columnist Christopher Honeyman & Bobbi McAdoo. Christopher Honeyman is principal investigator of “Theory to Practice,” a major Hewlett Foundation-funded effort to help ADR practitioners and scholars interrelate better. Honeyman, a full-time neutral since 1978, has served as consultant to numerous dispute resolution programs, and writes frequently on dispute resolution ethics, quality control and finance. This column is adapted from an article in the ABA’s Dispute Resolution Magazine. Honeyman, “Confidential, More or Less,” January 1999. � 2000, CCH INCORPORATED. All Rights Reserved.

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