Generally speaking, we all want and expect confidentiality when disclosing personal information and talking about conflicts in our lives. In this article, I discuss my approach to confidentiality and why I don’t promise absolute confidentiality for communications in mediation.
What Is Confidentiality?
Confidentiality is the obligation to keep information secret or private. We often expect it from friends, family, therapists, lawyers, and doctors, each of whom has different legal or societal norms. Confidentiality in mediation sounds straightforward, but what does it really mean? Who is obligated to keep what information private from whom and what are the consequences for not doing so?
Mediation Privilege in Illinois
Illinois, like several states, has adopted the Uniform Mediation Act. Every party to a mediation conducted in Illinois, should familiarize themselves with Sections 4-8 of the Uniform Mediation Act, which cover:
Privileged communication
Waivers of privilege
Exceptions to privilege
Content allowed in mediator reports
Confidentiality
Section 4 of this act states that communications in mediation are privileged against disclosure, not subject to discovery, and inadmissible as evidence in a proceeding (710 ILCS 35/4). Privilege can be waived or precluded for certain communications according to Section 5 (710 ILCS 35/5), and there are exceptions to privilege detailed in Section 6 (710 ILCS 35/6). Non-privileged communications include:
Information already admissible, subject to discovery, or publicly available
Plans to inflict bodily injury or commit a crime
Information that must be reported due professional misconduct or malpractice obligations
Confidentiality in a Global World
The Uniform Mediation Act applies to mediations in Illinois, but with the rise of virtual mediation, parties may not be in Illinois at the time. Not all states consider communication in mediation to be privileged, and there is no federal US law governing confidentiality in mediation. This raises the question which laws apply when parties are not all in the same state.
In an article called “What You Say In Online Mediation May Be Discoverable”, Jeff Kichaven, Teresa Frisbie, and Tyler Codina discuss cases where mediation communications protected by state law were deemed admissible in states where those communications were not protected. The states in the cases cited applied their own laws regardless of where the mediation was held. Therefore, mediators cannot promise that mediation communications will be kept confidential, even where all parties conduct mediation in a state where those communications are protected.
What Can Mediators Promise v Control?
Confidentiality is often seen as a benefit of mediation, but it should not be promised because the mediator has no control over:
Whether other parties keep the information confidential
Whether parties are located in a jurisdiction that provides confidentiality
Whether another state or nation may in the future require that something communicated in mediation should be disclosed or admitted into evidence
I don’t want to make promises I can’t keep.
Though I aim to protect the information you share with me, I also want to be upfront about what I can control. This is why I don’t advertise confidentiality as a benefit of mediation.
Why Absolute Confidentiality Isn’t Beneficial
Even if I could guarantee confidentiality, I wouldn’t make absolute promises. Mediators need support to navigate complex cases and handle emotional impacts. Reflective practice groups, where mediators debrief and share experiences, are crucial for professional growth. These groups agree to keep confidentiality, but some case details may be discussed.
While I won’t share your names or identifiable information, I may discuss certain case details as needed for professional support and improvement. A good mediator recognizes the emotional weight of your stories and finds the support she needs to be present, understanding, compassionate, and fair.
What I Will Promise
The section in my mediation agreement on confidentiality will focus on what I can control and clarify what I cannot or will not keep confidential. This approach aims to set realistic expectations and build trust and rapport.
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