The aspect of confidentiality is the biggest USP of the mediation process. Why it is such an important element of a successful mediation? As per me, it creates an open and safe space for communication, and communication is the backbone of any successful mediation. If participants/parties do not rely on the confidentiality of the process, they are bound to hide information and remain candid about their pain points, settlement position, or any other sensitive points necessary for a successful mediation. Therefore, confidenitality is a core element of the process of mediation, although there are other important elements like neutarlity, impartiablity, finality etc.
“Confidentiality creates an open and safe space for parties to initiate communication”
Confidentiality is the enabler of communication, which leads parties to settle making it the most important element of the mediation process. The parties find comfort and support in understanding that confidentiality is the core of the process of mediation. Confidentiality is perpetual and indestructible, it exists at the start of the mediation process, continues during settlement discussion and remain eternal even after the recording of a settlement agreement in a successful mediation.
“Confidentiality never loses its grip in a successful mediation. It exists at the start of the mediation process, continues during settlement discussion, and remain there even after settlement agreement.”
The ethic guidelines say a mediator is obliged to maintain the confidentiality of all information gathered from parties during the mediation process unless agreed contrary to by the parties or the same is required by law for the enforcement of the settlement itself. Therefore, a mediator cannot disclose confidential information without the permission of all the parties.
While parties are free to agree on terms relating to confidentiality in a mediation agreement, however, the rules of institutions administering mediation services invariably make provision for the same. As per institution rules, the mediation process is private and confidential, and even parties cannot call for any record of mediation, except the final settlement if recorded between the parties. The only exception to this is when its disclosure is necessary for purposes of implementation and enforcement.
The Legal Benefit:
The implementation of confidentiality in the mediation process also helps in giving a protective shield to the mediator, as well as to the parties, from the mediator having to testify in the court. In a given case, if one party chooses to use any information, action, the opinion given by the other party during the mediation, the obligation of being a neutral third party- the mediator can not depose against one party to help another one. The mediator is to remain impartial and keep the process confidential. This gives protection to the parties in dispute from being penalized for any disclosure, admission, or opinion during the mediation process until a settlement is recorded in writing and signed by the parties. Confidentiality provides an important realistic solution to a potential legal problem in mediation.
Perceptional advantage:
It gives psycho-emotional leverage and eases the process of mediation when all the parties involved make a general and unconditional acceptance and acknowledgment to keep the discussion confined to the room and maintain confidentiality. It provides an open and safe space for communication and encourages the parties to open up and even vent out his/her feelings and emotions. Such venting of emotions is an important and valuable feature for parties with interpersonal disputes having an intimate relationship.
The goal of mediation has always been to achieve a win-win situation in any given conflict and provide an alternative to zero-sum gain (a substituted version of the original concept of the “Zero-sum Game”) court litigation.
How to achieve confidentiality:
This is a critical element in any successful mediation and can be achieved by clearly defining the process as completely confidential with full liberty to share information or feelings without any fear of retribution or any legal implication. The ground rules of mediation must also be shared at the outset and during the introductive session.
The Author, Legal Mind Ajit Kumar, is a Relationship Coach, Family Mediator, and an expert in conflict resolution besides being a practicing Divorce/Family Lawyer. For seeking a Marital or Divorce Mediation through Video Conferencing and one to one online/phone counseling on any relationship issues, you can call and make an appointment at 9810522134.
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