The Underlying Philosophies of Mediation

5. Confidentiality

That we respect confidentiality is also the 8th Principle of Effective Communication: 

Let me tell you a secret
Put it in your heart and keep it
Something that I want you to know.
Do something for me
Listen to my simple story
And maybe we'll have something to show.

You tell me you're cold on the inside
How can the outside world
Be a place that your heart can embrace?
Be good to yourself
Because nobody else
Has the power to make you happy.

George Michael - Heal the Pain
from:

Listen Without Prejudice Vol. 1

Confidentiality and Conflict Resolution

This article is written by Alan Sharland, Director of CAOS Conflict Management, London, UK

Confidentiality is strictly practised by mediators. Unlike in other areas where confidentiality is practised, its role is not just about respecting the privacy of personal information about someone, it has an additional role in protecting the impartial and without prejudice status of the mediation process.

If information were to be divulged which has been heard by a mediator, it could prejudice a situation in favour of one party, breaching the guarantee of impartiality and also potentially contributing to the allocation of ‘blame’ for something that has happened.

Hence, mediators do not discuss what they hear said by someone who is in dispute with someone else. For example, when dealing with neighbour disputes, it is sometimes the case that the agency officer who referred the case would like a report on what was discussed.

Because the usual role for Housing Officers, Police officers etc. is to investigate dispute situations and distinguish a ‘victim’ and a ‘perpetrator’, there is a risk that anything we say to the referrer will be used to add to the case for or against one of the parties involved.

This would be an abuse of the confidence that mediation provides that all issues can be openly discussed without fear of condemnation or punishment. This openness is the very basis on which resolution can be achieved. If it were not present then the parties would continue to withhold as much information about their actions as they could to protect themselves and the situation would not be resolvable.

There is often a worry that this means that mediators are keeping information that should be declared but this would miss the primary point that the purpose of the without prejudice status is to allow anything to be divulged, but the secondary point is that in most mediations, the dispute is rarely over a situation of illegality as this would, by definition be dealt with by the courts.

The dispute is over issues of difference of opinion, lifestyle, values etc. This may have led to an illegal act such as an attack on a neighbour and this would be the issue dealt with in court, if there is evidence to prove the attack occurred. However, the issues of the neighbour dispute that may have led to the attack remain outside of the remit of the law (it’s not illegal to have different values to someone else or to have a different lifestyle) and these could be resolved through mediation.

This is similar in other areas of dispute in which mediation is used. Generally it is used to deal with the aspects of a destructive conflict which are not covered by law. Even where it is used in highly charged situations such as in civil war situations and other circumstances, the illegal activities are not dealt with by mediation. Mediation deals with the behaviours and events that lead to such illegal activities, or go on around them, and tries to support resolution of these.

In any attempts to support the resolution of conflict therefore,(whether via mediation or informally) it is crucial to respect the confidentiality of what people divulge. Passing on information, even that which may seem innocuous can exacerbate a difficult situation as it adds to the insecurity of those involved.

People in neighbour disputes will often not want information about their health shared with the neighbour, if, for example they are suffering a serious illness.

Unfortunately, I have heard some 'conflict resolution' practitioners go so far as to use such information by informing the neighbour, in order to try to generate some 'sympathy' for them. When the neighbour is not forthcoming with the sympathy and the other neighbour finds out that they have been told, the whole situation has been escalated through the practitioner's misguided approach.

This is an example of where practitioners try to 'control' those in dispute by trying to manipulate their thoughts and feelings rather than allow expression of the thoughts and feelings present in the disputants and then work with what is expressed.

Any similar attempts to elicit sympathy or guilt in people in dispute is always a 'rescuing' approach and is based on the notion that the practitioner uses their 'value judgements' to inform their practice.

This is entirely the opposite of what is advocated here in that the most important discipline is to reduce as much as possible any introduction of one's own values and opinions. The way that the skills of Listening, Summarising and Questioning are practiced is one which seeks to minimise this.

If you have an intention to support others in resolving conflict, such as work colleagues, family members, friends etc. an awareness of the importance of not sharing information they disclose is crucial. Not just because it is respectful of their privacy, but because this practice serves a crucial role in supporting the process of conflict resolution.

It maintains ownership of what is discussed with those directly involved in the dispute and prevents a feeling of lack of control over what is happening in their situation.

Informally sharing the information with others unavoidably contributes to the development of 'factions' that take sides due to the introduction of their subjective viewpoints to the situation and this, therefore, increases the number of people involved in the dispute, even indirectly.

However, their involvement can easily become more direct as they start to express their views on what they have been told, and take actions accordingly, sometimes with devastating results.

Confidentiality and Communication

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In the realm of communication, breaches of confidentiality can have a profound effect. If people feel that their secrets and personal issues are going to be discussed with others and they are not comfortable with this, then they are likely to stop communicating as they won’t feel safe to share their views and fears and ideas and vulnerabilities and mistakes.

The impact of this can be seen through the example of rumour and gossip. Many people live in fear of talking about themselves and their thoughts and actions and desires and vulnerabilities because there is a risk that others will discuss these and often ‘reinterpret’ them with others (Principle 5 is not practiced – that we speak only for ourselves).

I have often been shocked and saddened to hear ‘professionals’ discuss their clients, openly using their names on their mobile phones when I have traveled on trains and buses in London. I have also seen lawyers read legal case notes on tube trains where the possibility of keeping the information confidential when doing this is very low.

The notion of ‘shared information’ between professionals is often grossly abused when the communication could easily follow a practice of not using identifying information such as address or name during the conversation when it is not necessary. Instead,I have often heard full names and addresses openly used in inappropriate situations.

It is, perhaps, understandable, that people can find it difficult to 'open up' and share their personal thoughts and feelings with others because confidentiality is often not treated with the reverence it deserves.

It is also easy to understand the loss of trust that people have in agencies that breach confidentiality in the ways described, and where it happens, to understand the disillusionment and anger that arises. Unfortunately it is often seen as another sign of the person being 'difficult' rather than an expression of their frustration and fear at having details of their personal life shared inappropriately and unnecessarily.

Do you respect confidentiality?

..... or to the Conflict Resolution page....

.... or ..... go to the 9th Principle: That it is ok to make mistakes....