Mediation Confidentiality – Private vs. Joint Sessions

There has been a longstanding controversy among mediators as to the use of private sessions. While some adhere to a structure in which participants routinely meet in private session and rarely in joint session, others refuse to ever meet privately. Out of Court Solutions mediators spend about 95% of our time in joint session, but don’t hesitate to meet privately with participants whenever we sense that doing so would provide greater opportunities for empathy, humility, and compassion, or would otherwise help participants reach agreement.

Here are some of the situations in which we are apt to ask for private sessions. We may ask to meet privately with participants when we sense that they are stuck on a particular issue. Perhaps they have spent hours discussing it; we’ve provided different options and alternatives, as well as legal information, but one or both participants are unable to make further progress. Our experience is that more often than not the reason for this is that one participant hasn’t fully disclosed all of the information needed for the other to make a fully informed decision.

In one situation for example, the wife, prior to mediation, led the husband to believe that she was disinterested in his retirement benefits. The mediator had no knowledge of this, but when the time came to discuss division of marital assets, the wife hemmed and hawed, made unusual demands, and was unwilling to make final decisions. At that point, the mediator asked to meet privately where he soon learned that she had changed her mind and was worried about how to tell her husband that she wanted a portion of his retirement benefits.

Another instance in which we are likely to suggest private sessions is when we sense that one party may be attempting to dominate or intimidate the other. Let’s say that as we progressed with a couple, we saw that the husband was increasingly hostile to the idea of the wife consulting with legal counsel about her rights concerning spousal support. At that point, we would ask to meet privately. We would want to make certain that the husband understood the importance of the wife having the freedom to make informed decisions by consulting with legal counsel. And we would want to know if she would be willing to consult with legal counsel, despite opposition from her husband.

Private sessions can also be useful to intervene on repeated or extreme outbursts of emotion. Sometimes one or both participants simply need a “time out.” Other times, we want to offer a participant some of the anger management tools we offer, without causing that person any undue embarrassment or discomfort.

There are three things participants should understand about private sessions. The first is that there is absolutely nothing about them that is intrinsically good or bad. It is simply a method that has proven effective to help move the mediation process forward. I’ve had situations where we have never met privately and others where we have met privately six, seven, even 10 times. Second, we don’t keep secrets. In other words, if a participant privately tells the mediator something that the mediator believes is important for the other to know, he or she would feel at liberty to appropriately disclose it. We don’t want the person who’s outside the room to wonder what the other is telling the mediator. This creates fear and hinders the mediation. Last, if either party at any time thinks that it would be helpful to break into a private session, all he/she needs do is say so; if both parties agree, that’s exactly what we do.

Private sessions often provide the additional comfort and safety needed for participants to disclose uncomfortable or embarrassing information. However, private sessions are occasional, since 95% of our Situational™ mediation takes place in joint sessions in which participants talk directly with one another. Thus, they are able to hear one another, experience each other’s emotions, and simultaneously get the information needed to make informed decisions.

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