What is confidential mediation?

Confidential mediation is a way to solve arguments or disagreements between people in private. This means that what is said during mediation must be kept secret. Mediation involves a neutral person called a mediator who helps the people in the argument find a solution that works for everyone.

The process of confidential mediation

The mediation process usually follows these steps:

The people who are arguing agree to try mediation. They also agree to keep everything said in mediation confidential.
A mediator is chosen. The mediator does not take sides. Their job is to help both people in the argument.
The mediator meets with each person separately. This is called a private caucus. In these meetings, each person can tell their side of the story to the mediator. They can also talk about what they want to happen.
The mediator then brings both people together. The mediator helps them talk to each other in a calm way. The goal is for each person to listen to the other and understand their point of view.
The mediator helps the people brainstorm solutions to the problem. Everyone works together to find a solution that is fair to both sides.
If the people agree on a solution, the mediator helps them write it down. This written agreement is called a settlement. Both people sign the settlement and agree to follow what it says.

Why confidentiality matters in mediation

Confidentiality is very important in mediation. It means that the people in mediation can speak freely without worrying that what they say will be shared with others. This is different from going to court, where what is said becomes public record.

There are a few reasons why confidentiality is so important:

It allows people to be honest about their feelings and what they want. They don’t have to worry about looking bad to other people.
It protects people’s privacy. The problems being discussed in mediation are often personal. Keeping them private respects the people involved.
It helps people feel safe. They know they can speak openly without their words being used against them later.

The mediator must also keep everything said in mediation confidential unless the people agree otherwise. The mediator cannot be forced to testify in court about what was said in mediation. This rule has a few exceptions, such as if someone threatens violence or talks about child abuse.

The role of the mediator

The mediator plays a key role in confidential mediation. A good mediator must have certain skills and follow specific rules.

Mediator neutrality

The mediator must stay neutral. This means not taking sides or favoring one person over the other. The mediator’s job is to help both people equally. Some ways mediators stay neutral include:

Giving each person equal time to speak
Not judging who is right or wrong in the argument
Helping each person see the other’s point of view
Suggesting solutions that benefit both people

A mediator who favors one side is not doing their job correctly. If the people in mediation feel the mediator is biased, it can ruin the whole process.

Mediator impartiality

In addition to being neutral, the mediator must also be impartial. This means the mediator must not have any personal interest in the outcome of the mediation. The mediator should not be friends with or have a business relationship with the people in mediation. If the mediator knows the people involved, they must tell everyone before starting mediation.

Sometimes a mediator realizes during mediation that they cannot be impartial. In this case, the mediator must withdraw from the case. The people in mediation would then need to find a new mediator to continue.

Mediator confidentiality

The mediator must also maintain the confidentiality of the mediation. This means not sharing anything said in the mediation with outside parties. The mediator cannot talk about the case with friends, family, or coworkers.

There are some exceptions to mediator confidentiality. A mediator may need to share information if:

The people in mediation agree in writing that the mediator can share certain information
The mediator learns about child abuse or neglect and must report it by law
The mediator is ordered by a judge to testify in court (this is very rare)

Otherwise, the mediator must keep everything confidential, even after the mediation ends. This helps the people in mediation trust the process and feel they can speak freely.

The benefits of confidential mediation

Confidential mediation has many benefits compared to other ways of solving arguments, like going to court. Some key benefits include:

Privacy

Mediation allows people to solve problems in private. Court cases are public record, so anyone can learn the details of the argument. Mediation keeps the issues confidential. Only the people involved and the mediator know what was discussed.

This privacy is especially important for sensitive cases like divorce or workplace problems. People may not want their personal lives or professional reputation publicly exposed in a court battle. Mediation lets them address the issues without publicity.

Cost savings

Mediation is usually much cheaper than going to court. Court cases involve many legal fees, such as for lawyers and expert witnesses. The court process can also drag on for months or years.

In contrast, mediation can often be completed in a few sessions. The main cost is paying the mediator for their time. Mediation can save people thousands of dollars compared to a trial.

Faster resolution

Lawsuits can take a very long time to resolve. The court system is often backlogged, so it may be months before a case is even heard by a judge. And if a case goes to trial, it can last weeks or longer.

Mediation is a much speedier process. Once both sides agree to mediate, sessions can be scheduled quickly. Many mediations are completed within a few weeks. This allows people to put their problems behind them and move forward.

Flexibility

Court cases follow strict legal rules and procedures. Judges must follow the law when making decisions, even if the outcome doesn’t seem fair. There is very little room for finding creative solutions in court.

Mediation is much more flexible. The people involved can brainstorm unique solutions that work for their situation. They are not bound by rigid legal remedies. The mediator can help them think outside the box. This flexibility means mediation can lead to settlements that satisfy both parties.

Preservation of relationships

Court battles often destroy relationships. The adversarial process pits people against each other. By the end of a trial, the relationship may be damaged beyond repair.

The goal of mediation is to preserve relationships if possible. The process helps people see each other’s perspectives and collaborate on a solution. While not every relationship can be saved, many people find that mediation allows them to maintain a civil relationship. This is especially important if they must have ongoing contact, such as co-parenting after divorce.

When to use confidential mediation

Confidential mediation can be used in many types of disputes. Some common situations include:

Divorce: Mediation can help divorcing couples settle issues like property division and child custody.
Business disputes: Business partners, contractors, and employees can use mediation to resolve contract breaches, intellectual property issues, and other conflicts.
Neighbor disputes: Neighbors can mediate problems like property line disagreements, noise complaints, or conflicts over pets.
Workplace issues: Mediation is often used to address employee grievances, discrimination claims, and personality clashes at work.
Family conflicts: Families can use mediation to deal with issues like elder care, estate planning, and family business succession.

Confidential mediation works best when both sides are open to compromise. If one person refuses to budge from their position, mediation may not be successful. Both people must be willing to listen and work toward a mutually agreeable solution.

Mediation is also voluntary in most cases. A court can order people to try mediation, but they cannot force them to agree to a settlement. If either person decides they no longer want to participate, they can withdraw from mediation. The dispute would then likely go to court if not resolved another way.