When we talk about confidentiality, we can perfectly identify it with the so-called professional secret.
In the first term, we understand that the mediator cannot reveal the particulars and details of the mediation to anyone, that is, bring out what is "simmering inside", since this can help the parties feel safe and comfortable during the mediation process.
In this way, the mediators understand from the first moment that they are protected in some way by the legitimacy they give to the mediator. But in the same way, what was discussed in individual meetings and that have not been authorized by your confidant cannot be revealed in joint meetings.
Professional secrecy as a concept,what does it consist of?
Regarding professional secrecy, we must clarify that we cannot be witnesses in court on these matters, nor experts, a very frequent error on the part of courts and tribunals, when unfortunately, we have sometimes known that mediators have been called to trial to reveal any issue that arose in the meetings of the mediation process, something totally inappropriate. However, we have the exception in the American legal system, where there is an obligation to declare to the authorities information about cases of violence or even abuse against minors. In these cases, the mediator's obligation is to warn the parties that their confidentiality cannot be maintained. But the question is How far does this character of confidentiality go when we observe threatening speech or in caucus sessions they tell us something that the other party should know? Obviously we all have an answer in our heads when faced with these situations, but will we know how to act?
When we talk about confidentiality, we always use the example of knowledge of a crime, a moment in which we should reveal what happened, but what would you do in a situation like the one that occurred to me, when a client confessed to me that she was pregnant and the couple told me? I didn't know I only lead you to think.
In this post I also want to draw your attention to what is equally important to me, which is the so-called RESERVATION OF PARTS.
It must be taken into account that the principles that we advocate in mediation, most of them are applicable to the mediator, but also to those mediated. Thus, the so-called reservation of the parties, intends that the mediators, when they leave the mediation sessions, do not trivialize what we have discussed in them, with conversations with third parties, who would surely make altruistic recommendations or advice and who, with time to the next session would be an obstacle to the search for an agreement. Phrases like “I didn't sign you” or “don't trust too much what he told you because it's a lie”, ruining a negotiation and leaving it at a standstill.
That's why the mediator confidentiality and the confidentiality of the parties, promote mutual trust of the parties and contribute to guaranteeing good faith, collaboration, frankness between them and the sincerity of what is exposed in a process. Interests, needs and positions would be different if there were not this principle of confidentiality without fear that their words or information expressed will be used against them outside of the mediation process.
However, we must also say that this Confidentiality or reserve is favorable regarding the “content of what is discussed”, but not so regarding the “continent”. There is no problem, in fact, it is necessary to bring to light the sessions that have been carried out, the type of session, even with complete consistency if after the process a total or partial agreement was reached or, if applicable, there was no agreement, something that is reflected in the final act, a copy of which is delivered to the parties so that they can use it in one sense or another. This also derives from the informative nature of the mediation process.
European regulations advocate that this confidentiality also be subject to not only the mediator and the parties, but even those third parties who may attend mediation sessions for the assumption of their suitability in the intervention (that is, all participants in the process). )
To conclude, I will briefly refer to the exceptions to the principle of confidentiality that we could clearly observe:
- When the parties agree that the information be revealed, given that confidentiality is a privilege and if they agree (both parties), it could be revealed.
- Secondly, when it is required by the institutions for statistical purposes, how the process and implementation of the mediation carried out has gone, for studies and research. Obviously without revealing confidential data in this case
- Also in the event of being aware of a threat to the life or physical integrity of one of them. In this situation it is mandatory to inform the relevant authorities.
- And finally, as we have already stated, when it is related to the approval of the adopted agreements.
It goes without saying, and I am not going to go into more detail in this post, that if the principle analyzed is breached by the mediator, there are specific sanctions, indicated in the deontological codes of the mediating institutions.
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