CONFIDENTIALITY IN MEDIATION OF MATRIMONIAL DISPUTES

Publication Date01 Jul 1988
AuthorJohn P. McCrory
DOIhttp://doi.org/10.1111/j.1468-2230.1988.tb01766.x
CONFIDENTIALITY IN MEDIATION OF MATRI-
MONIAL DISPUTES
INTRODUCTION
THERE
appears to be general agreement that mediation should be
available to divorcing couples (the terms “mediation” and
“conciliation7’ are used synonymously in this article)
,
especially
where children are involved, and there is a strong constituency for
the view that mediation which occurs early in a dispute has the
best chance of success.’ There is, however, debate as to whether
mediation services should be integrated into divorce procedures
and, therefore, be available only after a divorce petition has been
filed (in-court mediation), should be provided by programmes not
directly connected with the courts and available to couples before
as well as after divorce proceedings have been commenced (out-of
court mediation), or by a combination of the two.
The subject of this article is confidentiality in matrimonial
mediation, a matter of importance whether mediation occurs before
or after a divorce petition has been filed or the service is
provided by in-court or out-of-court programmes. The confidential
relationship between a mediator and the parties to a dispute is a
fundamental characteristic of the mediation process.*
As
used here, mediation means a process by which an impartial
person (or persons) intervenes in a dispute to help the parties find
a mutually agreeable resolution of their differences. The process is
voluntary in that the mediator does not have the power to compel
See, for example, D. Parker and L. Parkinson, “Solicitors and Family Conciliation
Services-A Basis for Professional Co-operation”
(1985) 15
Fam. Law
270, 273
(hereafter
referred to
as
Parker and Parkinson);
G.
Davis and
J.
Westcott, “Report
of
the Inter-
Departmental Committee on Conciliation”
(1984) 47
M.L.R.
215
(hereafter referred to
as Davis and Westcott); C. Yates, “The Interdepartmental Report on Conciliation-a
Step Backwards”
1983
J.S.W.L.
335, 336-337.
L. Parkinson, “Conciliation: A New
Approach to Family Conflict Resolution”
(1983) 13
Br.
J.
Social
Wk.
13, 24.
For a
cautious view regarding timing of intervention,
S.
Roberts, “Mediation in Family
Disputes,”
(1983)
46
M.L.R.
537, 552.
For a dissenting view regarding the appropriateness
of
matrimonial mediation see A. Bottomley, “What is Happening to Family Law? A
Feminist Critique of Conciliation,” in
J.
Brophy and
C.
Smart,
Women in Law
(Routledge
&
Kegan Paul
1985).
Comprehensive discussions of matrimonial mediation
in
Great
Britain are contained in
L.
Parkinson,
Conciliation in Separation and Divorce-Finding
Common
Ground,
(Croom Helm Ltd.
1986)
(hereafter referred to as Parkinson), and
The Role
of
Mediation in Divorce Proceedings:
A
Comparative Perspective (United States,
Canada and Great Britain)
(Vermont Law School Dispute Resolution Project
1987)
(hereafter refered to as
The Role
of
Mediation).
*
In an article relating to mediation of environmental disputes, the author identified
the following
as
fundamental characteristics of mediation, which have made it adaptable
for
the resolution of many different types of disputes:
1.
the neurality
or
impartiality of the mediator (both actual and perceived);
2.
the voluntariness of the process;
3.
the confidentiality
of
the relationship between the mediator and the parties: and
4.
the procedural flexibility available to the mediator. J. McCrory, “Environmental
Mediation: Another Piece for the Puzzle,”
(1981) 6
Vermont L. Rev.
49, 56.
442
JULY
19881
CONFIDENTIALITY
IN
MATRIMONIAL
DISPUTES
443
the parties to participate3 or to impose resolution.
If
mediation is
to be successful, the parties must participate willingly. The
agreement reached is that of the parties, not the mediator.
Mediation is an extension of a negotiation process. Although a
mediator may encourage the parties to alter the way in which they
view their dispute, and each other, in order to find areas of
agreement through the identification
of
common interests and
goals: the fundamental objective is to promote self-determination
and cooperative decision making. When mediation is successful,
the parties often learn from the experience and are able to resolve
future differences without the intervention of a mediator or a
court.
For present purposes, the term “confidentiality” refers to the
extent to which statements made and information revealed during
the course of mediation are shielded from disclosure. The principal
focus
of
discussion is on a mediator’s right to refuse disclosure. It
is recognised that the term is often used to describe a situation
where information is received with a promise of non-disclosure, but
it is given a broader context here.
In England and Wales, judicial decisions that relate specifically
to confidentiality in matrimonial mediation have arisen from
attempts at reconciliation. They predate contemporary family
conciliation services, which deal primarily with mediation of child-
related disputes, and are the product of an era when couples were
discouraged from acting cooperatively to resolve differences
associated with the termination of their
marriage^.^
The purpose of this article is to examine the generally accepted
legal basis of confidentiality in matrimonial mediation; question the
adequacy of the protection it gives to the mediation process; and
advocate an alternative legal basis for confidentiality, one which
would better serve the needs of mediation and would provide a
methodology for deciding issues that will arise as the use of
matrimonial mediation becomes more common. More specifically,
the article advocates that confidentiality in matrimonial mediation
should be governed by the doctrine of public interest immunity,
rather than the “without prejudice” privilege.6
In the United States the substantive and procedural rules relating to divorce are
matters
of
state law. In a growing number
of
States court ordered mediation has been
adopted by statute
or
court rule. In California, mediation
of
child custody and visitation
(access) disputes is mandated by statute. Maine requires mediation
of
all contested
matters when children are involved. See
J.
McCrory, “Legal and Practical Issues in
Divorce Mediation-An American Perspective,” in The
Role
of
Mediation
144, 146.
The
Report
of
the Matrimonial Causes Procedure Committee
(1985)
HMSO
ISBN
0
11 380004 5
(hereinafter referred to as the Booth Committee Report) has
recommended against mandatory mediation. See para.
4.59.
L.
Fuller, “Mediation-Its Forms and Functions,”
(1971)
44
S.
California
L.
Rev.
305, 325-327.
Booth Committee Report para.
4.3.
Although the focus
of
discussion in this article is judicial decisions relating to
confidentiality, the desirability
of
proving protection for matrimonial mediation by statute
or
court rule is not questioned. As a practical matter, the law in this area is predominantly
judicial.
D
v.
NSPCC
[1977]
1
All E.R.
589, 609.

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