Confidentiality as a Process Control Mechanism for Dispute Resolution

Decision making,  problem solving, transformation/resolution/dissolution of conflicts, ultimately means,  reaching a certain goal. Lopus and Oden opine that the thrust factor here is either security potential or aspiration levels. Conflict automatically raises a defense mechanism and emotions kick in to start a reaction which follows a trajectory depending on how the conflict is handled. Unless the goal is perceived and way cleared for focusing on the goal, escalation of a conflict cannot be deterred.

Often, the initial ‘spotlight illumination’ of factors negates looking at the larger picture. A pre-attentive stage of perception, where the responsibility for the conflict is not revealed, ought  to be necessarily  followed by a stage which focuses attention and recognition of the goal. Only then the escalation of the conflict or frustration and consequently reactions can loose momentum to give way to evaluation of the situation. At this stage confidentiality is the fulcrum for a paradigm shift.

Immanuel Kant has said that:

People have fundamental moral right to have their choices respected

1. Right to truth
2. Right to privacy
3. Right to act without prejudice
4. Right to what is agreed

When information is exchanged during negotiation, there is an element of surprise about how the other perceives the situation, congruence, dissonance, choices and so on. Memory steps in, as every perception clicks a key in the brain. This illumination, acts as a trigger in selection of required information or to bring consonance. Beliefs, values and expectations, add their resonance in making a choice. While so social consensus, conditioning, need for immediacy of rewards or threats are also pivots on which decisions are made. So there is a need to speak aloud and find whether the idea resonates. When the neutral is able to establish rapport, to enable the party to voice concerns/fears/adequacy of offer/reasons behind offer and so on, even sub-conscious awareness of information tends to break free of the rigidity with which it was withheld. This brings in substantive satisfaction as one feels heard and understood.

Confidentiality alone can be the bedrock for participation, listening, questioning perspectives and offers and taking control. At the entry point of initiating discussion, fears and concerns overlap perspectives and the spotlight is on what one wants to see and hear and so there is a biased view. The true picture can emerge as one gets to reveal the fears and concerns and that cannot definitely be in the presence of the opponent. The dilemma here for the neutral is to understand what is privileged information and what is totally confidential and cannot be disclosed at all.

Social consensus and affirmation about the ‘correctness’ of the choice leads to the next stage of information and unless a certain guarantee about keeping the information within certain boundaries is given, cards will not be revealed on the table. Once there is understanding of perspectives or different opinions, offers will flow when the discussion is to be in good faith, and the door is open for exit without compulsion to accept/accede or surrender. This gives leverage to expand and explore options. From there, once terms are agreed and confirmed, bringing them into force and acting as per the agreed terms depends on how the confidential information was handled by the disputants and neutral and by acts that follow the agreement.

Also disputants ought to be impressed  they have an obligation to retain information gathered or facts revealed  confidential. The disputants ought to understand that they have a responsibility in the creation of the conflict and it’s resolution and use of confidential information at the appropriate stage will not only establish trust in the process but also ensures participation with an awareness and decision making with intention to execute it. Also self-esteem of the disputants is boosted by retaining confidential information at their request and helping them to analyze it’s value. This is more so in the case of collective bargaining. Once agreement is reached, ensuring confidentiality guarantees performance. At this point, if there is a breach, can unconscionability alone be a factor to bring everything into the public domain is the moot question? What could amount to breach of confidentiality?

There are various factors which have a bearing:

MEDIATOR’S ORIENTATION:

While parties exchange information, a directive mediator would be focusing on commonalities, and pointers on which ideas are to be explored or guaranteed. Ferreting the relevant and discarding the irrelevant becomes the task of the mediator while listening and summarizing.  On the other hand a transformative mediator uses the commonality to pause and reflect, summarize and rephrase to understand the intentions and without removing the gist of what is conveyed, attempts to get more clarity.  Power and powerlessness is effectively a tool here, for the disputants to seek out opportunities. So when a mediator is directive and gets offers which are bracketed, he/she knows the value available and could use the bracketing to move parties to a certain value. On the other hand the transformative mediator would be asking parties to make the offers after considering options and possibilities. Unlike Directive mediation where there is a balance of power, in transformative mediation, it is more of understanding the power difference.

MEDIATOR’S PRESENCE:

Neutrality, voluntariness and without prejudice discussions, the core of mediation enables the mediator to establish rapport and bring trust to the table. So it is necessary for the mediator to be ‘felt’ as otherwise, the acrimony between the disputants would lead to escalation. Control over the process and guarantee of workability of the final outcome depends on the presence of the mediator. This presence slowly emerges when confidentiality is respected. Once confidential information, even bracketing, appears to a disputant during negotiation, that it has not been handled carefully, the mediator will be under a handicap. Even after the mediation is over, it is necessary to keep the information under wraps as any hint of talking about it will become a slur on the integrity of the mediation process itself as an appropriate dispute resolution tool.

MEDIATOR’S  PERSUASIVE APPROACH:

Factual, emotional and rational dimensions need to be addressed in a conflict. The mediator has to encourage exchanging of information, facts, figures and projections, validating their feelings by empathizing and by clarifying concerns and fears and finally help them to do a reality check. Here, reciprocity, scarcity, addressing priorities and needs help.

MEDIATOR’S STYLE:

Intervention and choosing when and how to give information, persuading the parties to exchange information that they are holding close to their chest, has an influence on decision making and confidentiality therefore plays another pivotal role here.

MEDIATOR’S NEUTRALITY:

Maintaining confidentiality, creating trust, giving the time and space to explore, allowing disputants to make their decisions without impinging on their right to choose demands patience and motivational skills. The mediator has to keep in mind that he/she does not own the problem and his/her task is only to enable disputants to unravel the problem and get to know other perspectives. When confidential information is kept in trust, the parties get emboldened to explore avenues. The greatest task then is not to blow one’s trumpet especially when it is a successful mediation of high profile parties.

CONCLUSION:

Neutrality and self-determination have their foundation in confidentiality and unless this has a sound basis, integrity of the process cannot be maintained.

                       

Uma Ramanathan

Uma Ramanathan, Advocate, Mediator, and Mediator Trainer. She is also the Organising Secretary of the Tamilnadu Mediation and Conciliation Centre, High Court, Madras. She practiced as an advocate in the High Court Madras, Tamilnadu, India for 29 years. She has been practicing as a Mediator since 2005 and training mediators… MORE >