Peace of mind
It is a standard part of all mediation agreements that information later disclosed during the mediation should remain confidential, without that safeguard, the parties may be much more reluctant to open up to their inner needs from the process sufficiently to reach a settlement. It is in fact so standard and so regularly respected that thought is rarely needed as to how that confidentiality obligation is actually enforced – "It just is" seems an inadequate response somehow!
The question does, however, surface from time to time in workplace mediations or facilitations. These are often tainted by a more or less total lack of trust on the part of the employee in the employer or the line manager representing it. Whatever explanations you give of the confidentiality rule, whatever the employer says or signs to in the mediation agreement, the employee still sometimes refuses to believe that this obligation will be respected and that what they say will not later be used "against them". Overcoming this trust problem is often a prerequisite of the mediation going ahead.
The model CEDR mediation agreement says in relation to confidentiality: “Every person involved in the mediation … will keep confidential all information arising out of or in connection with the mediation.” Once all parties are signed up, it becomes a legal contract, enforceable at law like any other. In cases of abuse or leakage of confidential information, the employee could in theory seek either damages and/or an injunction against further disclosure. In the context of a manager-subordinate workplace dispute, however, neither remedy is likely to be realistic in most cases. Both require referral to the civil courts and the incurral of material costs, plus exposure to more if the claim is unsuccessful. Identifying any financial loss from the breach of confidence (a usual prerequisite of an award of damages) may be next to impossible, and once the information is out or used in the workplace, there is little benefit to an injunction either.
Depending on the nature of the confidential information and of the abuse of it, the employee could maintain that the manager's breach of his/her confidentiality promise in the mediation agreement was also a breach of the company's duty of trust and confidence. That could form the basis for a decent constructive dismissal claim, especially if the employee's concerns about disclosure or abuse were expressly raised pre-completion of the mediation agreement, and if the information from the mediation disclosed or used afterwards was of a particularly sensitive nature. But that constructive dismissal route obviously requires the employee to lose their job, so, as remedies go, it is not without its problems either.
Abuse of trust
If the manager's abuse of information gleaned from a mediation process is overt and deliberate, could that be grounds for his/her dismissal? In my view yes, though the burden of proving some level of intention will in effect be on the employer. After all, information you hear in a mediation about the other party's fears, health, domestic situation, etc., does not leave your head just because the mediation process finishes. A high degree of mental discipline is required to know something relevant or to your personal advantage and not use it, even unconsciously. While the employee can be told that abuse of their confidential information could lead the manager to be dismissed, therefore, they can have no reassurance that this will necessarily be the case, or that the manager will see that technical possibility as a material deterrent in fact.
The law itself therefore provides little comfort to an individual who holds those views of their management counterparts in a workplace mediation. Formal legal enforcement of the confidentiality obligation in the mediation agreement is deploying a blunt instrument of uncertain effectiveness and considerable risk to oneself.
Therefore, the route to building the necessary trust has to start not with the other side, but with the employee. It can be asked, gently, what information, specifically; they fear could be used against them? After all, in many workplace mediations, there will be few facts in play of which both parties were not fully aware before the process even started. What actual abuse could the manager realistically make of the information concerned? Above all, employees in these circumstances must remember that it is they alone who control what information is disclosed by the mediator to the other side. If they do not want to reveal information which is personal or which they feel leaves them vulnerable, they do not have to. Even if the mediator considers that the information in question is material and could have a very positive impact on the thinking of the other side, the employee is under no obligation to release it.
What should you do?
Therefore, the advice to the individual must generally be to give mediation a go. They can play it by ear as the day goes along, disclose only what they want and, if it all gets too much, leave without recourse. On the other hand, the employee may relish the fact of control, may sense some possibility of a resolution to an increasingly entrenched dispute, and perhaps even see evidence that the manager is putting their trust in them by the disclosure of information which they in turn recognise as potentially useable against the manager. The knowledge that both parties are exposed or have “skin in the game” can often be a powerful force for good in this context, especially if the mediation is aimed at rebuilding the working relationship rather than finding terms on which to end it.
It may be that an individual's lack of trust in their manager is entirely unwarranted. Equally, it may be fully justified. Either way, the question of whether they have sufficient confidence in the obvious advantages of mediation to overcome their suspicions must come from within them, since they will find little help from the law.
David Whincup is a partner and head of the London employment practice at Squire Patton Boggs. His expertise gained from twenty-five years as a specialist employment law practitioner covers a wide variety of employment-related issues, including individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and intellectual property in the workplace. David is highly ranked in all legal directories and recently listed in the best lawyers in the United Kingdom.