The Special Vantage Point of a Mediator
The Powerful Role of Confidentiality in Family Mediation
Often, the biggest obstacle to arriving at a workable agreement in a family law matter is a lack of clear information not being communicated between the parties. While there are many good reasons for not wanting to lay all of your cards on the table for the other party to see, not disclosing enough information to the other party can stifle the process of reaching the best agreement for all involved. If you find yourselves stuck while trying to work out a solution to a family law matter on your own, a confidential mediation may be a great next step.
You may find it reassuring to understand how confidentiality protections work in the family mediation setting. In this article we’ll give an overview of confidentiality and explain why it plays such a powerful role in family mediation.
Before you begin a family mediation, the mediator should establish what he or she will and won’t disclose to others outside the session, as well as to those who are participating in the mediation session. It is common for mediators to begin to broach the subject of confidentiality in a pre-mediation consultation and it is perfectly acceptable for you to ask any questions you have about confidentiality during that consultation, or at any point throughout the mediation process.
Additionally, before you begin a mediation, you will see language about what may or may not be disclosed by you, the other party, and the mediator in the Agreement to Mediate. Read carefully to make sure you understand not only what information is protected by the mediation, but also what you are agreeing to keep confidential.
Before we step any further into the specifics, let’s consider for a moment why confidentiality is so helpful to the mediation process. Fundamentally, a mediator is there to help you to arrive at solutions for the issues you face. For the mediator to be as effective as possible, the parties must be able to trust that they can safely disclose information about their situations, both financial and otherwise. They also need to feel confident that discussing possible concessions will not leave them vulnerable if the mediation breaks down. The mediator can only do his or her best work when the parties can speak openly about what they need to move forward, and what, if anything is a deal-breaker. Confidentiality is a critical component of the mediation process.
Let’s discuss for a moment what is likely to happen during your family mediation session. The mediator may make an introduction for a few minutes with both parties together. Eventually though, the mediator will meet with the parties at separate times and in separate rooms. As a party to mediation, you may need to share information that you do not want shared with the other party in order to help the mediator understand your circumstances. With exceptions, some of which will be mentioned later, you can absolutely depend on the mediator to keep that information confidential. However, you must be clear with the mediator about your wishes.
You may wonder—how does the information disclosed during mediation affect what might take place in a court of law? With very few exceptions, the mediator cannot testify about what has taken place during mediation, not even about how the parties looked or how they conducted themselves. This important aspect to confidentiality in mediation means that a party can offer up concessions during mediation on the path to an agreement, without worrying that those will have consequences should the matter end up in court.
You may also be wondering about those exceptions to confidentiality in mediation that we referred to above. They aren’t surprising. Firstly, the signed agreement reached in mediation is not confidential so if information is part of that agreement, it will not be considered confidential. Likewise, information that is already public, or is available to the public is not protected. In addition, any information that relates to a crime or a threat of a crime is excepted from both mediator and party confidentiality. Aspects of the mediation that relate specifically to a malpractice action may also be exempted. Remember that confidentiality rules for mediation are determined by the individual states so if you have specific concerns, you should address them to your mediator or to your attorney in the state where you live.
The ability of parties to share information with the mediator that they would not share with each other makes confidentiality a powerful driver of the success in family law mediation. Whether you are working toward a stipulation and settlement agreement for divorce, a parenting-time arrangement, eldercare planning or adoption issues, you may be concerned about keeping your family issues as private as possible. The rules around confidentiality in family mediation afford the mediator a candid look at the priorities and perspectives of the parties, as well as what they require to reach an agreement. With this special vantage point, the mediator can quickly identify where there is consensus, and concentrate on the work of guiding the parties to agreement on other points.
If reaching an agreement for your family is challenging, why not give mediation a try? While family dynamics and or circumstances may prevent you or the other party from disclosing fully the obstacles to a solution, a mediator may be able to help you discover your own best solutions while still protecting you and your confidential information. If you are in South Dakota, we invite you to reach out to us. https://www.redwoodmediation.com/