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C is for Confidential

Posted By Charlotte Carter, NYSDRA Executive Director, Wednesday, September 6, 2017

Confidentiality is fundamental to mediation: Standard V of the Standards of Conduct, and considered so critical that mediations conducted by community dispute resolution centers are protected by Article 21-A of the NYS Judiciary Law. Confidentiality and privacy are critical to consumers as well; Justin Corbett the big data collector and processor of Advancing Dispute Resolution noted in his keynote address at NYSDRA’s conference two years ago that confidentiality was the most important factor to people who were considering using mediation.

It might seem straightforward, but the subject quickly gets complicated. What if a mediator learns something during a mediation session or a caucus that raises serious concerns? (Check here for the Mediator Ethics Advisory Committee’s opinion on what a mediator should/could/may do upon learning during caucus that one participant is secretly recording a mediation.) What do you say to a referral source (a judge, for example) who poses reasonable follow up questions? Is it sufficient just to change the names? (No!) What compelling “stories with wings” (Cynthia Kurtz, NYSDRA workshop) can you tell to legislators, government officials, grantors and other potential referral sources and/or funders to convey the value and potential of mediation to our communities and to social justice causes? How do you tell that story and also demonstrate your commitment to confidentiality? Have you ever caught yourself saying “This is confidential, but. . .”?

I’m not going to presume to provide answers; where’s the fun in that? I do hope some of these questions make you uncomfortable, determined to dig deeper, and to raise the bar of mindfulness in our conversations about what we do and why. 

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