The primary reasons why confidentiality is a critical aspect of the role of the mediator is:
- one concerns legal liability;
- Promotes open communication;
- Protects sensitive information;
- Maintains the integrity of the process;
- imperative for a conducive mediation environment.
Considering that a mediator’s fundamental role is to act as a neutral third party who creates a safe space for open and effective dialogue between parties for the purpose of an alternative dispute resolution, he will likely be in a position to have special knowledge regarding a particular dispute type, or industry. However, his job as a mediator is to impartially facilitate the parties’ free expression of needs, feelings and interests as they relate to the conflict in a productive manner.
Hence, all mediators will need to, at least, have a special knowledge of effective communication skills, potential psycho-social barriers to productive dialogue and conflict resolution, and an ability to help others communicate and resolve conflicts effectively. An important element in this equation is for the mediator to hold and make evident a clearly defined rule of confidentiality during mediation.
Confidentiality on the one hand must be implemented in any mediation agreement to protect the mediator and the parties from the mediator having to testify in court. The mediator must ensure both parties that he or she cannot testify against one of the parties in order to help the other party. The mediator must remain impartial both in perception and in fact. This protects the parties involved in the conflict so that neither can be penalized over what was discussed in what was supposed to be a confidential mediation.
In addition to the legal benefit comes the psycho-emotional advantage of the parties having the general acknowledgement that any discussion will remain “in the room”. This gives parties the platform to freely express themselves, to effectively communicate, and to collaboratively brainstorm solutions and problem-solve. Especially knowing that what is said in the mediation setting will not be used against them later. This will facilitate dialogue and develop a safe environment for authentic expression.
The purpose of mediation is to collaboratively develop Win-Win solutions to a conflict, as an alternative to zero-sum litigation proceedings. This requires brainstorming, in an uncensored fashion and the freedom to express underlying interests without fear of legal repercussions. The only way to accomplish this critical element of the mediation process is to clearly define the process as a completely confidential setting, where no ideas or feelings expressed pose the potential for personal retribution or legal / financial damages going forward.
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