The Confidentiality Issue

Today, I want to talk about the issue of confidentiality and how it affects us. You know, there’s confidentiality, there is prejudice, there is privilege, and so on and so forth. But do they mean the same thing? What exactly is confidentiality? What am I being confidential about? What is it that makes you confident that a secret is kept? Is it the things that we say in the meeting? Or is it the events around the entire meeting itself? Difficult to distinguish, if I may say so! I have spoken before about parties challenging a mediation settlement agreement because the mediator was not sufficiently neutral, or that there was bias, manipulation, and so forth. Now, it is possible to establish the truth without necessarily going into the content of the proceedings. Whatever the case, in writing the confidentiality parts of our mediation agreements to mediate, we must make it clear that the confidentiality – without prejudice – goes both not only to the process itself, but all that surrounds it. That may seem like an innocuous distinction; however, I am beginning to find that this is not so, especially the things that may have been said, in the private caucus. What then am I suggesting doing in an agreement to mediate? It would be among other essentials to provide a clear representation and warranty that the parties are responsible for the agreement. Let them agree with me expressly that it will be, and it is, their agreement, not mine. 

Number two, let them agree that it is not only what we say in the mediation that is confidential, but the very fact that we have mediation; that we even came together to try to resolve our dispute.  Number three: you should establish their power of agreement, when executing the settlement agreement, if any. The mediator should ask them, “do you understand everything that you have signed? Do you realize the implication of it that this is what you’re saying?”  Responses should be recorded and, if there is something that they do not understand, this should be clarified and corrected.  Because when that confidentially occurs, the parties should also be told that all records that are written in the confidentiality agreement will be destroyed immediately after. You can even put a timeframe of within six hours.  

You may think this is unusual, but many of my law practice colleagues will know that there are many confidentiality clauses in many commercial agreements, where we agree that at the end of the transaction, all the documents which we exchanged, all the things we present will either be returned or destroyed. And I do not see why in a mediation context, when we have a confidentiality clause, we should not be able to insert such a clause, that every record, every document, every note, whatever it is, immediately upon the execution of the mediation settlement agreement will be destroyed. There should be representations and warranties, whatever those fancy words we use in law, to ensure that they confirm you know what, it is not their agreement and not yours. Remember what happens when agreements are signed by illiterates with the help of an interpreter, who will interpret it – and explain – to the illiterate. Remember the illiterate jurat that would say that “It has been read to me. I have understood it, I have accepted it and have therefore signed it.” I think I would like to put similar words in my mediation settlement agreements. That parties have reviewed it, read it, and represent and warrant that it is their agreement, and confirm that they have neither been manipulated nor unduly influenced, and they take full responsibility for the agreement and agree to be bound by it. And when any party has signed that, it will become a little bit more difficult for such a party to walk away from it or even to challenge it.