Seen and heard: Children and the Courts Conference

Canberra 7-8 February 2015

Has confidentiality in Family Dispute Resolution

reached its use by date?[1]

Dr Tom Altobelli and Hon. Diana Bryant[2]

Abstract

The confidentiality of consensual dispute resolution processes including mediation and counselling has long been considered one of its defining features and as essential to its effectiveness. There is very little empirical evidence to support this claim. This paper presents the results of a recent survey of Family Consultants, many of whom have practised as such in both confidential and non-confidential settings, about their experience, perceptions and understandings in relation to confidentiality. The results are quite inconsistent with established thinking. Whilst there are clear limitations to the research, it is an attempt to undertake empirical research on a topic where there is a paucity of informed analysis, a factor that may reflect the methodological challenges of undertaking the same. The results of the survey will be discussed in the context of existing statutory protection for confidentiality, as well as orthodox thinking and practice.[3]

Introduction

The confidentiality of consensual dispute resolution processes, such as mediation and counselling, has long been considered one of its defining features and essential to its effectiveness. This paper will explore those claims and assert that there is little, if any, empirical evidence to support the same. Indeed the Family Consultants Confidentiality Survey 2012, the results of which will be presented and discussed in this paper, suggest quite to the contrary.

Whilst many of the points made in this paper can apply to consensual dispute resolution processes generally, the context here is primarily family law under the Family Law Act 1975 (Commonwealth). The relevant sections of the Act will be discussed. As the focus of this paper is consensual family dispute resolution the 2 statutory concepts of family dispute resolution (or mediation) and family counselling will be treated in the same way (despite their obvious and important differences in other contexts). For practical purposes the term mediation will be used to describe family dispute resolution. The Act also distinguishes between confidentiality and admissibility, two very different concepts. In this paper the authors will use the more generic term confidentiality, conscious that this paper may have a non-legal audience, but also desiring to elevate the discussion to a theoretical and policy level without distancing too far from practice.

The present discussion about confidentiality of consensual dispute resolution processes takes place in a particular context. The 2012 amendments to the Act[4] are commonly known as the family violence amendments, the result of much government sponsored research.[5] The family law system in Australia continues to struggle with managing and responding to allegations of family violence. On of the important findings of the research was about the critical importance of sharing information about families with other people and institutions within the Family law system who are working with that family. Indeed this paper will contend that existing confidentiality rules and practices act as an artificial barrier to the sharing of that information, particularly about violence and abuse, and that this is contrary to the interests of families, and the best interests of children.

A particular perspective of the writers is, unsurprisingly, judicial decision making. If family law litigation is properly understood as being what it really is – a process rather than an event – there are particular problems caused for decision makers early in the process as a result of artificial confidentiality rules. Some of the most important decisions about families are made very early in the litigation process at an event, or series of events, often described as an interim hearing. The context of these interim hearings is often one of urgency; of risk to a child or a parent; of highly conflicted, hastily prepared, irrelevant and often inconclusive evidence; and of highly partisan, subjective, uncorroborated assertions. This paper contends that confidentiality rules impede better decision making at a critical time in the lives of parents and children. Ironically its not that better information to inform risk assessment did not exist – rather it was not available to the court in a timely and efficient manner.

No research is perfect or conclusive. The Family Consultants Confidentiality Survey 2012 has obvious limitations. Foremost of which is that it is not a survey of those who participate in family dispute resolution, but rather of those who delivered the same in a particular context. But in the kingdom of the blind, the one-eyed man is king.[6] This is not an area where there is much, if any, empirical research. The writers call for more research on the topic of confidentiality and urgently call for a reconsideration of the existing dogma that seems to pervade professional and even academic writings and practice about confidentiality in family dispute resolution.

Benefits of confidentiality in consensual dispute resolution

Most of the literature on confidentiality focuses primarily if not exclusively on mediation. One author, after reviewing the literature, concluded that it “reveals an almost universal agreement that confidentiality is necessary to the survival of mediation”.[7] More recently an Australian author has asserted: “It has long been accepted that confidentiality is inherently important to mediation”.[8] Another leading Australian author has stated that confidentiality in mediation has taken the status of “an almost holy untouchable tenet”.[9] There are a number of asserted reasons for this. As mediators have no coercive power and depend on being able to improve communications and trust between the disputants, it becomes essential for parties to feel that they can be frank and open in discussions.[10] The same author asserts that confidentiality enhances the public’s perception that individual mediators and the mediation process are neutral and unbiased. The utilitarian argument is often advanced about confidentiality i.e. that it must be guaranteed if participants are to speak freely and frankly and to enhance the prospects of resolution with all its consequent benefits not just to the disputants and to the legal system, but to society as a whole. This utilitarian justification for confidentiality rests ultimately on a calculation of the effects of confidentiality or disclosure on the behaviour of current or future participants in the process.[11] In other words it is based on the theoretical view of how a disputant would behave if there was no confidentiality (i.e. that they would not speak frankly and freely) and that a disputant would not participate in future mediation if it were not confidential.

Confidentiality is a key aspect of mediation that is used to market and promote the process to disputants.[12] This is because the confidential nature of mediation assures participants that information introduced or exchanged is protected from use outside of the mediation[13]. It has been argued that confidentiality in mediation is necessary in order to have a strong ethical imperative both on a practical and principled level[14] and is a natural extension of mediation’s commitment to party self-determination i.e. that the parties alone choose when information that is transmitted may be communicated to another audience[15]. Confidentiality fosters an atmosphere of trust essential to mediation, similar to the relationship of lawyer and client, and doctor and patient.[16] Other reasons advanced to justify confidentiality include: it protects the legally naïve party from the person using mediation solely for discovery; it protects the mediator from being the investigator for one party, or third parties; it protects mediators from involvement in court proceedings arising out of unsuccessful mediations; it protects mediator neutrality.[17]

Reservations about confidentiality in consensual dispute resolution

There is much less literature that expresses reservations about confidentiality in consensual dispute resolution processes. Some of it is quite strident in its terms. Reich calls for “intellectual honesty” in discussions on the topic.[18] In articulating a strong argument against statutory mediation privilege he says that such a privilege “substitutes convenience for intellectual honesty”,[19] that “there is no empirical support” for the creation of such a privilege, and that there is “no demonstrable utilitarian societal justification” for such a privilege.[20] He plainly calls the orthodox view about confidentiality dogma, is highly critical of the limited debate that has taken place on the topic, and warns about the dangers of adopting “the everybody knows its important standard”[21] because of its subjectivity. This author’s concerns about the creation of mediation privilege is that it is “nothing more or less than privilege to suppress the truth”.[22]Using analogous empirical research drawn from psychotherapist-patient privilege research, attorney-client confidentiality and privilege research, and therapeutic communication confidentiality and privilege research, he contends that none of the orthodox policy assertions in support of mediation’s need for confidentiality are justified.[23]

Jones[24] argues that the utilitarian argument for confidentiality can only be established “if there is good reason, grounded in empirical evidence” to show that persons will be reluctant to disclose if confidentiality is not maintained, or would likewise be reluctant to participate. His research did not demonstrate a clear utilitarian basis for confidentiality in his professional context[25] though he accepted that there could be non-utilitarian arguments in favour of confidentiality based, for example, as enhancing autonomy.

Green[26] was possibly the first of the voices of concern about mediation confidentiality. In 1986 he described the then current campaign in the USA to create a mediation privilege as one resting “on faulty logic, inadequate data, and short-sighted professional self-interest”. He argued that “Neither the necessity for such a privilege nor the social utility of a general mediation privilege have been demonstrated”.[27] Responding to the claims of mediators that confidentiality was essential to the process he responded “…there is no data of which I am aware that supports this claim, and I am dubious that such data can be collected”.[28] The real value of Green’s work is the way in which he deconstructs confidentiality into its constituent components, and provides a framework for discussing the issue free from dogma or ideology.

Boulle[29] provides a useful contemporary and modern perspective on the issue. He regards mediation’s claim that confidentiality induces candour and frankness and provides a safe environment for disclosure as a claim “without serious empirical evidence”.[30] He argues that mediation’s claim of privacy and confidentiality “has lost some of its former allure”[31]because modern mediation occurs “in an era which demands transparency in government and which witnesses electronic self-exposure by many individuals”.[32] He places the discussion in the context of clashing societal and legal values[33] which result in “an uneasy equilibrium in determining the extent and limits of mediation confidentiality”.[34]

From an ethical perspective Gibson[35] warns that in maintaining confidentiality mediators “may find a conflict between common morality and their role morality”[36] and that there are situations where confidentiality should be broken and that there should be greater provision for external review. He warns about the danger of lack of public accountability, as well as protecting the interests of unrepresented but effected parties. He asserts that statutory exemptions to mediation confidentiality need to be well-considered, broad, and clearly drafted.

Rogers and Salem[37] refer to the concerns about confidentiality in mediation: that it undermines public confidence in agreements reached; that mediation succeeds in many contexts even where it is not confidential; that it hides lack of good faith. Welsh[38] also expresses concerns that “mediation’s promises of confidentiality and privileged communications may be making the process attractive to some actors for the wrong reasons”.[39] Her concern is that a process designed to help people may sometimes be doing harm.

Benefits and reservations about mediation confidentiality: joining issue

The writers of the present article have sought balance in articulating the arguments for and against mediation confidentiality. It seems to us, however, that the absence of any empirical research justifying the benefits of confidentiality makes the claim problematic. A utilitarian argument for mediation confidentiality cannot be made out on available empirical evidence. Indeed the survey data presented below tends to confirm this notwithstanding its limitations.

Even the autonomy argument for mediation confidentiality is problematic i.e. that the participants should be able to decide how their information is used. The autonomy argument is related to a fundamental tenet of mediation i.e. it is a process that empowers the parties to take control of and resolve their own dispute.[40] What makes these justifications for mediation confidentiality so problematic, indeed quite ironic, is that participants in family dispute resolution in Australia are rarely, if ever, consulted about whether and if so to what extent, they would like the confidentiality that is presented to them as an integral party of the process they are participating in.[41] To not include the participants in mediation in discussions about the nature and scope of confidentiality is hardly fostering their autonomy or empowerment in relation to the resolution of their dispute.

What does the empirical research say?

The main finding about empirical research in relation to mediation confidentiality is that none could be found. There is, however, research on other analogous and thus informative contexts. This will be described below.

Reich[42] refers research in a number of different contexts. With respect to psychotherapist-patient privilege, he refers[43] to the US Supreme Court’s decision in Jaffee v Redmond[44] which recognised a federal common law psychotherapist-patient privilege. Reich is critical of the court’s acceptance of the submission that effective psychotherapy depends on an atmosphere of confidence and trust, and therefore the mere possibility of disclosure of confidential communications may impede development of the relationship for successful treatment.[45] Reich notes the similarity of this contention to the public policy, indeed utilitarian arguments in support of mediation confidentiality. He then cites[46] research conducted by Shuman and Weiner[47] which found no support for the contention. For example they found that patients’ willingness to disclose information to their psychotherapist was not in any significant way influenced by no mention of privilege, mention of privilege, and statement of no privilege.[48] Reich concluded in this regard:[49]

The premise that mediation needs confidentiality implicitly holds that the existence of confidentiality is important to parties contemplating or using mediation and that confidentiality causes parties to reveal information they would not reveal in the absence of confidentiality. These enormous and fundamental assumptions are not supported by the previous empirical evaluation in psychotherapist-patient research…

Reich then considers attorney-client confidentiality and privilege.[50] A 1962 study published in Yale Law Journal[51] indicated that a substantial majority of lay persons would continue to use lawyers even if secrecy were limited. Thus, Reich submits, “at least in terms of fostering client disclosure of information, the Yale study certainly challenges the assumption that the attorney-client relationship needs privilege protection. If the attorney-client relationship does not need privilege to foster client disclosure…it follows that mediation may not need privilege to foster disclosures either”.[52]

In 1989 Zacharias published the Tomkins County Study on Confidentiality[53] and found that clients say they want a firm obligation of confidentiality but one is seldom offered, and thus either clients are not disclosing to lawyers because no confidentiality was promised, or clients disclose even without the firm commitment of confidentiality they want. Whilst the value of confidentiality presupposes that people will reveal information if they believe that such disclosures are protected, the reality is that people do not act in accordance with that principle. Thus, e.g., 11% of the respondents admitted that they did not disclose information to their attorneys when there was a privilege, and almost 80% of them knew there was a privilege. Reich makes the interesting point[54] that assuming that party beliefs in mediation are similar to the attitudes shown in this study, it is likely that mediation parties will withhold information even if a privilege exists. From the writers perspective, the fact that 11% admitted non-disclosure in a privileged context is a sobering reminder that truth is not guaranteed in any context, formal or informal, adversarial or non-adversarial, therapeutic or legal. The only real truth is that sometimes the parties we work with do not tell us the truth.

Reich then examined research about the confidentiality of therapeutic communications[55] as between psychologist and patient. These findings are inconclusive and mixed. A common theme is that patients want to know about confidentiality and its limitations. Where these studies diverge is on whether the degree of confidentiality assurance enhances or diminishes later client disclosures. One of the studies[56] suggests it does. One suggests patient ambivalence about this[57] and the other[58] suggests it matters only to some patients in some circumstances.

Indeed one study[59] concluded that laws that limit privacy protections may actually hinder the treatment they were intended to facilitate and that to promote patient disclosures it may be better to have no privilege than one with exceptions, especially if patients are aware of these exceptions.[60] It is obviously impractical to have a privilege without exception.

Another interesting and insightful empirical study on confidentiality was conducted by Yu in the context of educational research.[61] Yu challenges the importance and necessity of confidentiality, which is often taken for granted she contends, and questions whether the default promise of confidentiality to all participants, particularly in educational research, could in fact be an unnecessary concern. Yu’s study demonstrates that whilst researchers considered confidentiality to be their main or fundamental responsibility towards their research participants, none of them in fact actually confronted their participants about whether confidentiality was actually what they preferred[62]. Yu concludes that “…the constant of confidentiality appears to be internalised without conscious reasoning and reflection as to the necessity for it on the part of the researchers”[63]. Yu argues there be “a debate about the fundamental instrumental value of confidentiality, particularly when it is practised without conscious reflection on the part of the researchers, and when the practice is automatically extended to all participants”.[64] The present writers make a similar call for debate in the context of confidentiality in family dispute resolution. One wonders whether the behaviour found by Yu to exist in researchers also applies to those who provide and facilitate family dispute resolution in Australia.