Confidentiality in mediation

25 Basics of mediation (6)

Confidentiality in mediation is a fundamental, albeit not legally constitutive, element. Even if mediation is not conducted confidentially, it remains a mediation within the meaning of the law, even though it may not lead to a solution for this very reason.

The legislator defines mediation in terms of confidentiality.

• § Section 1 Mediation Act, definition: "Mediation is a confidential and structured process in which…."

The characteristic of confidentiality has two functions:

On the one hand, it distinguishes mediation as a "secret", non-public conflict management procedure from procedures that (must) be conducted in public, such as court proceedings.

Secondly, the confidentiality feature ensures that the information exchanged, communicated or generated in mediation may not be used in any subsequent court proceedings.

As confidentiality aims to protect the parties involved in mediation, they can (also subsequently) terminate confidentiality „ by agreement. Confidentiality is dispensable, say lawyers. Ultimately, it is an expression of the personal responsibility of the parties involved. This gives rise to various problems, which are discussed below.

Trust and confidentiality in mediation

Trust in one another is important for interpersonal cooperation processes – but not easy to achieve in conflict resolution. Trust is essential for an open dialogue that creatively balances the interests of the parties involved. The legal attempt to ensure confidentiality is quite understandable. Confidentiality is therefore seen as an elementary component of mediation that promises success.

In this respect, confidentiality is a prerequisite for the mediation process. And thus also the condition for mutual trust. Moreover newly won Trust is also a possible consequence of mediation.

Trust and confidentiality are interdependent and require constant attention in mediation.

This is why Ed Watzke, for example, has been able to develop his very own method that turns the process on its head for some mediators - the transgressive mediation: Watzke challenges the mediants at the beginning to make peace unreservedly and unconditionally – and to dare to put the mutual relationship on a new footing with immediate effect. This is – especially in highly escalated conflicts – a considerable imposition. But it is bearing fruit. It is only this peace agreement that enables a truly unusual (not unusual!) co-operation, marked by agreements and contracts. And for anyone who thinks this doesn't work, I would like to refer you to my blog post on transgressive mediation.

On personal responsibility: Trust is material, confidentiality is formal. 

All parties involved, i.e. both the mediator and the mediants, are responsible for the confidentiality of the mediation process. This harbours certain risks as well as opportunities. Ultimately, it cannot be relied upon absolutely. In mediation, confidential and sometimes personal or even intimate information is shared with a person or group who (at least in the current conflict) is perceived as an opponent. If the mediation fails, the risk increases and may result in damage. This may result in claims for damages – but even these are often only a weak consolation and insufficient compensation for something that cannot be compensated.

Confidentiality is all well and good, but trust remains your own responsibility. I have to answer the question of what I trust the other person to do for me. And this answer becomes the basis for my further actions. Mediation - and this is more evident here than anywhere else - is a process that does not exclude responsibility for one's own actions, but demands it and therefore risks failure.

Court proceedings, on the other hand, always succeed – because a judgement is always effectively issued.

It is not an exception in mediation when mediants remain silent due to a lack of trust, are not open because they cannot - and take responsibility for this. It is not a question of cowardice or guilt if the mediation does not reach an agreement or a final settlement. No one, no law and no mediator can guarantee that openness will lead to conflict resolution. It is up to the mediating parties to decide from minute to minute to what extent they will open up and must remain fully aware that this will not necessarily lead to the desired outcome.

If mediators make openness a condition, they should be careful that the mediants do not conclude that this is the only condition. In my experience, it is worthwhile to always see mediation as a Navigating together at visual range in unsafe and unfamiliar terrain to understand. Keeping your eyes open is absolutely essential.

Confidentiality - not only formally understood, but also materially fleshed out - turns out to be a complex characteristic. It is linked to the material aspect of trust and channels the uncertainties, dangers and risks of cooperation into the mediation process. Here it leads to the basis of mediation: Personal responsibility. The legislator can set formal requirements and framework conditions, e.g. prohibit the utilisation of certain evidence in court proceedings, but there is no absolute protection against breaches and abuses of trust.

Legal framework for confidentiality (and trust)

The legislator has imposed a duty of confidentiality on the mediator and her assistants, but not on the mediants.

• § 4 Mediation Act – Duty of confidentiality: "The mediator and the persons involved in the implementation of the mediation procedure are obliged to maintain confidentiality, unless otherwise regulated by law…."

This confidentiality obligation means that no information may be disclosed to third parties. However, there is no explicit provision in the Mediation Act (e.g. on a prohibition of disclosure or utilisation of evidence with regard to information generated in the mediation process). Systematically, such regulations are also more likely to be found in the procedural rules of the court branches. The protection afforded by confidentiality regulations in mediation proceedings is currently inadequate.

But especially for Mediation in companies and other organisational contexts it is necessary that the mediation neither loses evidence ("If I say something here, then I am not allowed to say it in court later?") nor gains evidence ("I am telling you this here, but you are not allowed to use it against me in court!").

Also significant are constellations in which negative consequences are (or must be) feared, which are realised outside of conflict management procedures.

Example: A department head admits in a mediation with colleagues that she was once responsible for the loss of a colleague's or the company's property. Should she expect to be dismissed by the employer? If so, what about confidentiality? If not, can "stealing“ employees take refuge„in mediation“ by deliberately working towards bringing this information into the corporate world in mediation? 

It is therefore ultimately up to the parties involved to contractually agree on utilisation bans.

Confidentiality and its limits - Sections 138, 203 StGB

The legislator has made fundamental value judgements regarding the disclosure of (confidential) information in 203 StGB. However, important points of reference can also be found in Section 138 StGB.

• § Section 203 of the German Criminal Code – Violation of private secrets: "Anyone who, without authorisation, discloses a secret that has been entrusted to him as a… {professional groups=offender groups}…or has otherwise become known to him shall…be punished."

Breaches of confidence can have consequences under criminal law for certain professional groups if they disclose secrets that have been entrusted to them in their professional capacity. The mediator is listed in the final catalogue of the § Section 203 StGB however, is not mentioned. However, the criminal standard can still be relevant for the mediating third party if they are acting as a member of the listed professional groups. The penal provision is also relevant if the member of the professional group is involved in the mediation as an expert third party. This applies, for example, to lawyers, professional psychologists, social workers, etc.

• § Section 138 – Failure to report planned offences 

On the other hand, in accordance with. § Section 138 StGB There is also a duty of disclosure, even if the information is confidential. For the benefit of the general public and potentially threatened individuals, information must be passed on that provides indications of a planned criminal offence within the meaning of Section 138 StGB. In this case, a misunderstood duty of confidentiality would lead to criminal offences. Therefore, anyone who does not report planned criminal offences (in the quality of the catalogue of § 138 StGB) is liable to prosecution. This includes, for example, murder, robbery or arson.

Anyone who learns during a mediation that, for example, an insurance fraud is intended to solve certain problems with the help of a (dangerous) house fire must report this information. I will not go into the details of these detailed standards here. What is important, however, is that this standard merely future offences, but not those that have already been committed. This means that anyone who becomes aware of a previous robbery or an offence of extortion (often in the context of divorce and separation proceedings) does not have to disclose this information under this standard.

§ 4 MediationsG - Confidentiality obligations of the mediator

The special regulation designed for the mediation procedure of the § 4 Mediation Act imposes a duty of confidentiality on both the mediator and their assistants. The standard does not cover the mediants themselves. It relates exclusively to information generated in the mediation process or obtained in any other way.

Exceptions to the duty of confidentiality arise for the mediator if…

• overriding reasons of public order must be observed
• these are facts that obviously do not need to be kept secret
• the disclosure of the content is mandatory for the enforcement of the mediation agreement.

Further confidentiality obligations can and should be covered by a contractual agreement. Such an agreement can, for example, specifically state that the information may not be made the subject of subsequent legal proceedings. These confidentiality regulations can be formulated within the working alliance (= mediation agreement at the beginning of the mediation process).

Confidentiality between the parties

The above statements can also be related in terms of content/material to the protection of confidentiality between the mediants. But directly from § 4 Mediation Act this does not arise. The standard does not cover the mediants themselves, but only the mediator and their assistants.

Therefore, full recourse to a separate mediation agreement is required here. This working alliance should therefore also urgently regulate a confidentiality agreement between the mediants. Here it can be agreed that the presentations and facts agreed in the confidentiality agreement are not admissible in any subsequent court proceedings. In principle, the mediants are also entitled to decide autonomously which content should be included in the agreement. Possible consequences of disregarding the working alliance may include injunctive relief, claims for damages and contractual penalties.

Rights to refuse to testify 

The duty of confidentiality for mediators and their assistants requires a right to refuse to give evidence in subsequent court proceedings. This arises for civil proceedings from § Section 383 (1) No. 6 ZPO. However, it is again at the discretion of the mediating parties to release the mediator from the confidentiality obligation. This arises from § Section 385 (2) ZPO. In criminal proceedings, the mediator generally has no right to refuse to give evidence. However, there may be supplementary special regulations for individual professional groups.