Queensland University of Technology Law and Justice Journal
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MARKETING MEDIATION ETHICALLY: THE CASE OF CONFIDENTIALITY
RACHAEL
FIELD [∗] AND NEAL
WOOD [∞]
Over the last three decades in Australia mediation has grown in
popularity as a constructive, negotiation-based, facilitated, informal
dispute
resolution process. This growth indicates an increasing awareness of the real
benefits of mediation as a positive dispute
resolution forum, and a greater
appreciation of its potential.[1] As
a result, mediation is now used in many dispute jurisdictions, ranging from
neighbourhood disputes, to the criminal justice system,
to personal injury,
family law, commercial, and international matters.
As the use of
mediation has developed and the number of mediators has grown, the practice of
mediation has turned from what was an
arguably adjunct multidisciplinary
industry to a respected dispute resolution profession in its own right. Whilst
the profession
remains unregulated and is still grappling with approaches to
issues such as accreditation and professional
standards,[2] the practice of the
process of mediation itself has become increasingly sophisticated.
Whereas, in the past, some mediators may have felt wedded to formulaic
12 step processes,[3] there are now
many variations of models of mediation practised in Australia that reflect the
emerging confidence of a maturing profession.
These models remain, in varying
degrees and with different emphases, true to mediation’s core fundamental
concepts and values;
which include, for example, the consensual nature of the
mutuality of agreements reached through mediation, the confidential nature
of
the process, and the absence of authoritative decision-making power on the part
of the mediator.[4]
An
increased use of mediation in disputes across many conflict contexts, and a
higher level of sophistication in the conceptualisation
of mediation as a
professional practice, create a greater need to market and promote the process
appropriately and ethically. Boulle,
for example, comments that the existence
of multiple approaches to mediation in Australia makes it important, from a
marketing and
consumer perspective, that explanations are clear about what
mediation does and does not offer
parties.[5] Mediation marketing
information is an important aspect of how parties are educated about
mediation.[6] It is used by parties,
therefore, to make informed decisions both about whether or not to participate,
and about whether a particular
model of mediation is appropriate for their
dispute.
This article considers the increasingly important issue of the
accurate and ethical marketing of mediation by its practising professionals
and
service provider organizations. To do this, the article focuses on the notion
of confidentiality. First, the article considers
ways in which mediation is
marketed using the concept of confidentiality, and connections between
promotional assertions of confidentiality
and mediation theory. Secondly, the
reality of confidentiality in mediation is explored, leading to a conclusion
that confidentiality
is insufficiently assured in the mediation environment to
warrant its use in a marketing context (at least without significant explanation
and qualification). Thirdly, two key reasons why ethical considerations may be
compromised in terms of marketing mediation using
confidentiality are
considered. And finally, suggestions are made as to how these issues might be
overcome in the future in order
to protect the integrity of the mediation
profession and assure its enhanced development and expansion.
The marketing of mediation is essentially about ‘creating or
expanding demand’ for the mediation profession’s services
through
the provision of information.[7]
Kotler and Keller identify four key elements to what is known as the
‘marketing mix’.[8]
These are: product, price, promotion and place. The focus of this article is on
the promotion aspect of this mix, which includes
advertising and public
relations. This focus is justified because the mediation profession still
seems, in some respects, to be
very much in the introductory stage of the
marketing product lifecycle.[9]
That is, the profession remains concerned, even with its more recent increased
popularity, to continue to enhance public awareness
about the process and its
benefits through marketing
processes.[10]
Clearly, the
growth and development of mediation as a key contemporary dispute resolution
process, is linked, at least to some extent,
to effective marketing of the
process to date. Potential parties have been convinced by what they have heard
about mediation (from
intake officers, mediators, and lawyers; or marketing
documents, such as brochures, fact sheets or pamphlets) that mediation is a
valuable, reliable and effective process. As the discussion below will evidence,
confidentiality is a key aspect of mediation that
is used to market and promote
the process to potential
parties.[11]
For the purposes
of this article, we considered written marketing information about mediation
from a cross-section of key Australian
mediation service providers and
agencies,[12] with a focus on what
was said about confidentiality.
The ‘Principles of Conduct for
Mediators’ of the Institute of Arbitrators and Mediators Australia
(IAMA) [13]
say of confidentiality that: ‘The reasonable expectations of the parties with regard to confidentiality shall be met by the mediator. The parties’ expectations of confidentiality depend on the circumstances of the mediation and any agreements they may make. The mediator shall not disclose any matter that a party expects to be confidential unless given permission by all parties or unless required by law or public policy’.[14]
Mediate Today’s information on ‘why use mediation’ gives the justification: “The information shared within mediation is private and confidential to the extent permitted by law. This provides a forum for open discussions and the opportunity to explore better outcomes.”[15]
The Dispute Resolution Centres of Queensland say of confidentiality:
‘Is mediation confidential? Yes. Mediators take an oath
of secrecy.
Nothing you say in mediation can be repeated by mediators to anyone else, and
nothing said during mediation can be used
in any legal
action.’[16]
The Community Justice Centres of NSW state in their Frequently Asked Questions about mediation that ‘All contact with CJCs is confidential and is covered by section 28(4) of the Community Justice Centres Act 1983’ which maintains that ‘Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body.’[17]
The Law Society of NSW’s information for the public on
mediation provides that: ‘mediation is a voluntary and confidential
conference, where all the participants have agreed to attend and to cooperate in
good faith to resolve the dispute between them.
A mediator appointed by the Law
Society of New South Wales assists the parties to discuss, negotiate and achieve
a solution. All
negotiations during a mediation are non-binding and
confidential. Experience has shown that mediation is more effective because it
is confidential.’[18]
The Law Institute of Victoria’s public information asserts: ‘In contrast to court hearings, arbitration and mediation are conducted in private and the decisions are confidential. Neither the reason for a dispute nor the basis upon which it is resolved need be made public. Confidentiality is the most significant advantage to parties using ADR.’[19]
In the family mediation context, Relationships Australia state in
their mediation information that one of the roles of the mediator
is to
‘maintain the confidentiality of the
process.’[20] The Family
Court of Australia’s information on mediation provides that
‘mediation sessions are privileged. This means
that the discussions are
private and anything said during the session is not generally given as evidence
in Court. There are exceptions
in some circumstances including where there is a
suspicion or risk of child abuse and where there is violence or threat of
violence.’[21]
The Queensland Law Society’s information about mediation does
not mention confidentiality,
however.[22]
Nor does the Lawyers Engaged in ADR (LEADR) information brochure on mediation, or the Australian Commercial Disputes Centre’s brochure.[23]
These statements indicate that approaches to using confidentiality to
market and promote mediation through information provision about
the process
vary widely. Clearly, however, assertions about the confidentiality of
mediation are quite common and consistent, maintaining
that mediation provides
the parties with the benefits of a confidential and private handling of their
dispute.
The presentation of this concept of confidentiality in
mediation is also consistent with mediation
theory.[24] Indeed, confidentiality
is generally taken to be one of the essential theoretical cornerstones of the
mediation process,[25] with Charlton
suggesting that it has now taken on the status of ‘an almost holy
untouchable tenet’,[26] and
with others agreeing that the notion of confidentiality works to embed in
mediation a general framework for the functioning of
the process
overall.[27] Baruch Bush
acknowledges that dangers inherent to informal processes such as mediation are
offset by the promise of privacy through
confidentiality.[28]
More
specifically, mediation theory breaks down confidentiality in mediation into two
key understandings. First, the confidential
nature of mediation is taken to
assure that information introduced or exchanged by parties in the process cannot
be used later against
a party, for example, in subsequent court
proceedings;[29] and cannot be
otherwise divulged, by another party or the mediator, outside the mediation
process. Information includes in this
context ‘statements or admissions
made, documents or notes produced, evidence submitted or details of any
agreement reached
at
mediation.’[30]
Confidentiality can, on this basis, allow mediation to be marketed as a process
that can ‘operate in an atmosphere of
openness’,[31] giving the
parties the confidence and security to disclose information in negotiations that
they might otherwise not disclose, and
allowing for honest communications
without fear of later prejudicial
effect.[32] If confidentiality were
not a key element of the mediation process, parties’ legal
representatives, for example, ‘may
properly feel compelled to advise their
clients to be cautious rather than forthcoming about their underlying interests
and positions.’[33]
Confidentiality, in this way, can be said to create opportunities for
the candid flow of information, and thereby facilitate the identification
of the
parties’ real positions, issues and
interests.[34] With the parties
engaging in a free ‘exchange of views about the dispute and the ways in
which it might be able to be
settled’,[35] mediators are
also better able to assist them to a mutually agreeable resolution of the
dispute.[36]
A secondary
understanding of confidentiality is as a value associated with mediator and
party relationships and interaction within
the process of mediation itself.
That is, where parties meet privately with the mediator and divulge information
that they do not
wish to have communicated to the other party, they can feel
confident that this commitment will be
upheld.[37] This aspect of
confidentiality is perhaps equally as important as the first concept discussed
above, to party perceptions of, and
trust in, mediation.
Confidentiality, with a strong grounding in theory and an overt presence
in information provided to potential parties about the mediation
process, can be
seen, then, as a key marketing tool for mediation, particularly in terms of
presenting the process as a safe and
private alternative context for the
resolution of disputes. This is critical to attracting parties from all dispute
jurisdictions,[38] and especially
parties who are involved in matters where sensitive personal or commercial
information is at the centre of the
dispute.[39] Confidentiality,
therefore, legitimates mediation as an alternative to litigation in providing a
process in which the parties’
dealings and revelations can occur in a
‘protected environment’ away from the view of the
public.[40] This is different and
special.
However, despite these assurances, and despite the
persuasiveness of mediation theory, as the discussion below will evidence,
different
degrees of confidentiality apply to different situations, and
assertions of confidentiality are not concrete or assured in all
situations.[41] This has
implications for the ethical nature about the heavy reliance on the concept of
confidentiality in mediation marketing material.
The clearly questionable
nature of confidentiality in mediation, discussed below, leads us then to
consider why ethical considerations
may be compromised in marketing mediation
when its comes to the use of confidentiality as a promotional concept.
Theory and aspirational notions alone are insufficient bases on which to
ground marketing representations about confidentiality in
mediation; and a
reality check is necessary to ascertain whether what is said of confidentiality
in mediation can be borne out by
what participants in mediation are likely to
experience. In fact, the discussion in this section demonstrates that the
reality of
mediation is that there are significant practical problems with the
notion of confidentiality.[42]
These problems might be said to raise concerns that, essentially, the principle
of confidentiality is little more than an ideal
of practice that lacks any form
of guarantee. Boulle, for example, maintains that there are many situations in
which confidentiality
will not be upheld because of the wishes of the parties,
the nature of what was disclosed, countervailing principles and policies,
or the
orders of a court.[43]
Confidentiality in mediation can be seen then to be either reliant on the
goodwill of the parties (and this goodwill can dissolve
readily when mediation
is not successful), or, ironically, dependent on legal protections, for its
practical efficacy.
Some protection of confidentiality in mediation can be found by way of statute. This is the case in relation to many court-annexed mediations. For example, in mediations conducted under the Supreme Court of Queensland Act, 1991 (Qld), mediators are prevented from disclosing (without consent) information coming to their knowledge during a mediation; although parties are not restricted in a similar way.[44] Also under that Act, ‘evidence of anything done or said, or an admission made at an ADR process is admissible in another civil proceeding only if the parties agree.’[45] Section 36(2) of the Dispute Resolution Centres Act, 1990 (Qld) makes similar provision for mediations conducted under the auspices of a Dispute Resolution Centre in Queensland, but this protection is subject to a number of qualifications in s.37.[46]
The Family Law Act, 1975 (Cth) also provides that evidence of anything said or any admission made in a mediation is not admissible in any court.[47]
There is also potential statutory protection of confidentiality to be
found in the Commonwealth Evidence Act, 1995 which provides that evidence
is not to be adduced of communications made or documents prepared in an attempt
to negotiate a
settlement of a
dispute.[48] However, the Act
provides that this privilege does not apply to communications or documents that
are relevant to determining liability
for
costs;[49] and in Silver Fox Co
Pty Ltd v Lenard’s Pty Ltd this exception was upheld notwithstanding
relatively comprehensive confidentiality clauses in an agreement to mediate
between the
parties.[50]
Statutory protections of confidentiality are limited, and it must be
remembered that, in any event, many (arguably even most) mediations
in Australia
are conducted outside the context of such protections. In situations not
covered by statutory provision, two key alternative
avenues exist in terms of
protecting confidentiality in mediation: the first is by way of contract, and
the second is through common
law privilege. The discussion here of these two
legal approaches to confidentiality leads us into an analysis of the efficacy of
assertions of confidentiality in mediation marketing material in the next
section of the paper.
One of the most common legal mechanisms used to ensure confidentiality in
mediation is that of a contractual provision that is part
of an agreement to
mediate made prior to entering into the
process.[51]
However, protections of confidentiality through express contract, such as
agreements to mediate, have yet to be fully considered
by Australian
courts.[52]
The structure
and terms of individual agreements to mediate can vary significantly, however
most include a confidentiality clause
stating something to the effect that
‘all parties agree not to require the mediator to give any evidence or to
produce documents
in any subsequent legal proceedings concerning the issues to
be mediated upon’.[53] Many
also include, for example, a clause stating that ‘the parties and the
mediator will not disclose to anyone not involved
in the mediation any
information or document given to them during the mediation unless required by
law to make such a disclosure
or except for the purpose of obtaining
professional advice or where the person is within that party’s
household.’[54]
Despite
the potential for confidentiality agreements to protect disclosures made during
mediation there are still a number of perceived
limitations. Astor and Chinkin
maintain a cautious attitude that even where there is a contractual provision
for confidentiality,
the legal doctrines around the use of these clauses have
not been fully tested by the courts and ‘all that seems certain is
that
confidentiality is complex and cannot be
absolute’.[55]
The 2004
case of 789Ten v Westpac Banking Corporation
(789Ten)[56] illustrates the
efficacy of a cautious approach to reliance on confidentiality clauses in
agreements to mediate. In 789Ten, a dispute arose in relation to
the potential use in subsequent litigation of information allegedly obtained by
the three cross-defendants
in the course of a failed attempt to resolve the
matter through mediation.[57] Prior
to entering into the mediation, all parties had signed an agreement to mediate,
which included relatively extensive confidentiality
and privilege
clauses.[58] Clause 11 of the
agreement made reference to keeping ‘confidential information’
confidential. Clause 12 of the agreement
related to privilege and referred more
broadly to, for example, statements and documents. The court interpreted the
contract restrictively
by first finding that the matter did not fall within cl
12 of the agreement, and then secondly drawing a clear distinction between
the
protection of ‘information’ and the protection of ‘statements
or documents’ in terms of the reading of
clause 11.
The end result
was that the confidentiality agreement did not work to protect the
confidentiality of documents in the mediation.
789Ten establishes, then,
that agreements to mediate cannot be assumed to prevent a later use of
information disclosed in mediation, or
a later requirement to disclose that
information.
There has also been some judicial consideration in Australia
of the ability for confidentiality agreements to bind third parties present
at
the mediation. This issue falls within one of the most fundamental rules of
contract law, privity, which requires that only parties
to the agreement are
bound to comply with its terms. As a result, to ensure the enforceability of a
mediation confidentiality agreement,
it is considered essential that all parties
present at the mediation sign the agreement including the mediator, the parties
and their
legal advisors and any other witnesses to the mediation
proceedings.[59] Moreover, it has
been suggested that good mediator practice should include the execution of a
confidentiality agreement by all participants
as a separate deed to the
mediation agreement to ensure that all parties will be covered by its
terms.[60] The reason for this was
highlighted in the recent Queensland decision of Williamson v Schmidt
(Williamson).[61]
In
Williamson a legal advisor who acted for one of the parties to a dispute
previously settled by mediation, attempted to represent a new third
party in a
related legal action against the client previously represented at the
mediation.[62] It was argued by the
original client that the solicitor should be restrained from acting in the new
legal proceedings because the
likely use of information gained at the mediation
would be in breach of the mediation confidentiality agreement which had been
signed
by the legal advisor.[63] In
rejecting this argument, Lee J. considered that the proper construction of the
agreement indicated that its terms were only binding
on the individual parties
to the mediation and not the legal
advisor.[64] As a result, even
though the legal advisor had signed the confidentiality agreement, it was only
in his capacity as one of the parties’
advisors and did not of itself make
him bound by the terms of the parties’
agreement.[65]
Contractual
protections of confidentiality can therefore be seen as somewhat limited, with
the courts seeming to err on the side of
facilitating the efficacy of litigated
proceedings though limiting the scope of effect given to confidentiality
clauses. Public
policy considerations clearly do not support upholding an
agreement that purports to withhold evidence from a
court.[66] The prevailing
uncertainty of the legal position in Australia regarding the status of
confidentiality agreements, must necessarily
compromise confidence in
contractual measures to ensure confidentiality in mediation. And whilst it is
thought that such agreements
will provide better protection for parties to
mediation than the protection offered by statute or common law
privilege,[67] such agreements
cannot be seen as providing a guarantee of confidentiality by any means.
In addition to contractual protections of confidentiality, the common law
has also recognised to some extent the need to protect the
confidentiality of
mediation if parties are to be encouraged to attempt to settle their dispute
before pursuing litigation.[68] The
seminal statement of this principle was made by the High Court in Field v
Commissioner for Railways for New South
Wales[69] in relation to
pre-trial negotiations, but the principle has been found to be compelling in
terms of mediation also. For example,
in AWA Ltd v George Richard Daniels
T/A Deloitte Haskins and Sell, the mediation process was held to be
‘somewhat analogous to “without prejudice” discussions between
parties...in
an attempt to settle
litigation’[70] and
consequently without prejudice privilege was said to apply to communications
made during mediation.
Essentially the principle enables ‘parties
engaged in an attempt to compromise litigation, to communicate with one another
freely
and without the embarrassment which the liability of their communications
to be put into evidence subsequently might
impose’.[71] As a result,
genuine negotiations between the parties with a view to settling the dispute are
covered by without prejudice
privilege.[72] This privilege
requires that if the negotiations fail, nothing said or obtained in the course
of those discussions can be introduced
as evidence in any subsequent court
proceedings without the consent of both the
parties.[73]
Courts,
however, face a difficult balancing act when deciding on the extent to which
without prejudice privilege will protect confidentiality
in
mediation.[74] The principal
tension exists between ‘the importance of confidentiality to the success
of the ADR process, on the one hand,
and the public interest in ensuring that
the court has before it the best possible evidence to enable it to ascertain the
truth on
the other.’[75] This
tension was expressed by Rolfe J in AWA Ltd v Daniels as being ‘if
information gleaned at mediation can then be used parties will not agree to
mediation for that reason. On the
other hand ... if any information given at
mediation could not be used as the basis for calling admissible evidence if
mediation
fails, there would be a sterilizing
effect.’[76]
These
competing principles create a concern not to provide any blanket confidentiality
protection in mediation because there is a
concomitant inability to prevent the
potential misuse of such protection by mala fides
parties.[77] Boulle, for example,
argues that ‘there is strength in the pragmatic view that subsequent
litigation should not be stifled
by an over-rigid approach to mediation
confidentiality.’[78]
Consistent with the view of Rolfe J, Boulle argues that absurd consequences
could result if the courts were prevented from examining
evidence about other
matters simply because those facts had been disclosed in mediation as this would
in effect ‘sterilise’
all manner of information from use in other
judicial proceedings.[79]
On
the other hand, Crosbie maintains that insincere parties would be less inclined
to treat mediation as a ‘fishing expedition’
where there is greater
protection afforded to the confidentiality of the ADR
process.[80] That is, by ensuring
that all communications within the mediation cannot be introduced in later court
proceedings, the ability for
parties (who are intent on litigation) to make
inappropriate or cynical use of the process can be
reduced.[81]
Given the
complexity surrounding the protection of confidentiality through notions of
privilege in mediation, it is not surprising
that the courts have been required
to consider in detail the various competing principles. The current case law
suggests that there
are at least some circumstances in which the courts will not
be prepared to uphold the ‘without prejudice’ protection
afforded to
mediation.
A significant judgment on this issue was written by Rogers
CJ in the case of AWA Ltd v George Richard Daniels T/A Deloitte Haskins and
Sell[82] (AWA) in which it was
necessary to determine the legal status of documents discovered in the course of
a failed mediation. The case
arose out of an initial action by the plaintiff
against their former auditors for breach of a duty and the auditors cross claim
against
the directors of the plaintiff’s company. After several days of
trial, the dispute had been referred to mediation and discussions
took place on
the basis that all matters discussed would be covered by without prejudice
privilege. As a result, in the course of
the mediation, the defendant auditors
had a previous belief confirmed as to the existence of a series of deeds which
the plaintiff
company had signed indemnifying the directors for any claims
against them in negligence. The mediation failed to resolve the dispute
and
consequently upon the resumption of the original litigation, the defendant
auditors attempted to introduce the deeds as evidence.
The question before the
court was whether or not the deeds discussed in the mediation could be excluded
from evidence on the basis
that they were covered by the without prejudice
privilege attached to the mediation.
In deciding the case Rogers CJ
stated that ‘it is the essence of successful mediation that the parties
should be able to reveal
all matters without an apprehension that the disclosure
may subsequently be used against them...otherwise, unscrupulous parties could
use and abuse the mediation process by treating it as a gigantic, penalty free
discovery process’.[83]
However having acknowledged this, Rogers CJ went on to consider that there were
two very strong arguments which lead to the conclusion
that the deeds should be
admitted.
The first of these was that as a matter of principle, it would
be too easy to sterilise otherwise admissible evidence on the basis
that it had
been considered in the course of mediation, particularly if its consideration
was irrelevant to the matters
discussed.[84] The second argument
concerned the practical reality that to uphold the absolute privilege of
mediation would result in long and
costly litigation in order to determine if
the party seeking to introduce the evidence was aware of its existence prior to
attending
the mediation.[85] As a
result, it was held that even though the mediation was conducted on the basis
that all matters discussed were covered by without
prejudice privilege, the
deeds should still be introduced as the auditors had at least some idea of their
existence prior to the
mediation.
The above discussion indicates that, whilst marketing information (with
the backing of mediation theory) promotes mediation on the
basis of
confidentiality as a low risk venture with potentially high quality dispute
resolution outcomes, the reality is that the
efficacy of confidentiality as a
foundational tenet of marketing practice can be brought very much into question,
and is far from
self-evident. Indeed, assurances of confidentiality might be
considered in most circumstances to require significant qualification.
This
section of the article considers the qualified nature of the concept of
confidentiality in mediation, in terms of an ethical
approach to marketing the
process.
In the marketing discipline, there are some who think that
ethics have become optional,[86] and
that ‘much of advertising is concerned with making grandiose claims about
the trivial.’[87] A
commitment to ethical marketing can be found where there is a focus on
‘what is right or
good’,[88] and where the
marketing process avoids lying and
cheating.[89] Ethics in marketing
is about ‘what ought to be done’, not what is legally
required.[90] ‘Ethics prompts
you to do things even though you don’t have
to.’[91] In order to make
decisions about what ‘ought to be done’ to be ethical about
marketing mediation on the basis of confidentiality,
those marketing the
process, and the mediation profession, must have their focus firmly fixed on the
fair treatment of mediation
participants and on maintaining the legitimacy and
credibility of mediation as a professional practice.
As Lovelock and
Wirtz comment, ‘few aspects of marketing lend themselves so easily to
misuse (and even abuse) as advertising,
selling and sales
promotion.’[92] If consumers
of mediation rely on marketing promises about the benefits of the process, and
then become disappointed because their
expectations are not met, and if they
feel then that they have wasted time, money and effort, then the process of
mediation itself
and its future might well be jeopardized. For this reason
ethical marketing of mediation is imperative. Consequently, where claims
about
the confidential nature of mediation do not materialise in practice, the process
is potentially damaged through a loss of party
faith.[93]
To market
mediation ethically requires that the information used in the marketing process
is truthful and accurate.[94] This
is because, as was indicated above, marketing information about mediation
educates consumers and frames their understandings
of the
process.[95] It is therefore the
basis on which decisions are made to buy into the process. In our view, in the
case of mediation marketing,
being truthful and accurate about confidentiality
involves providing parties with full and detailed information about the
qualified
nature of the real operation of the
concept.[96] Anything less fails to
market mediation ethically and compromises the legitimacy of
mediation.
IAMA’s ‘Principles of Mediation’ confirm the
importance of honest and accurate information in the marketing of mediation.
They state that ‘a mediator shall be truthful in advertising and
solicitation for mediation. Advertising or any other communication
with the
public concerning services offered or regarding the education, training, and
expertise of the mediator shall be
truthful.’[97]
Also, the National Alternative Dispute Resolution Advisory Council’s
(NADRAC) framework of standards for alternative dispute
resolution (ADR)
practitioners provides that when an ADR practitioner is advertising their
services, they must ensure that the information
is accurate and that they do not
make exaggerated claims about their
materials.[98]
Clearly,
however, current marketing information about confidentiality does not provide
the level of information required to satisfy
what ‘ought to be done’
if the participants of mediation were indeed to be given truthful and accurate
information.
Why is this the case? Why is it, when we know that
confidentiality is an extremely qualified concept, that this is not made more
explicit to parties in mediation marketing processes?
Drumwright and
Murphy, writing about approaches of advertising professionals to ethical issues,
identify the concepts of ‘moral
muteness’ and ‘moral
myopia’ as ways of explaining a failure to do ‘what ought to be
done’ in marketing
contexts.[99]
‘Moral
muteness’[100] involves
failing to recognizably communicate moral concerns when
necessary,[101] which in the
context of this analysis of mediation marketing can be seen as the silence in
marketing processes about the complexity
and qualified nature of
confidentiality. Moral muteness can occur where the focus of marketing involves
such a high level of promotion
of the process that there is little room left for
any acknowledgement of problems or difficult issues.
Therefore, even
though mediators, and others who market mediation, may recognize and understand
that confidentiality is not assured
in mediation, they perhaps choose to remain
silent because they are pursuing the perceived greater good of promoting
mediation as
a positive dispute resolution process. A marketing approach that
reflects moral muteness on the issue of confidentiality might be
seen as
justified because the alternative, of ethically marketing mediation through
providing accurate information about confidentiality,
could be considered
‘bad for
business’.[102] In
addition, moral muteness might occur in this context because there is a
perception that providing full and truthful information
about confidentiality
will open a Pandora’s Box of potentially harmful effects to perceptions of
mediation.[103]
‘Moral
myopia’[104] on the other
hand is a form of moral blindness that results in the prevention of ‘moral
issues coming clearly into
focus’.[105] In the context
of mediation marketing, this involves marketers of mediation perhaps not wanting
to see the true nature of confidentiality,
and thus having their moral vision
about what ‘ought to be’ said about confidentiality in mediation
marketing information
distorted. Moral myopia might also be said to arise where
marketers are too close to that which they are marketing to be critically
reflective and open to what ‘ought to be said’ in order for
marketing information to be accurate and truthful, and therefore
ethical. This
is described by Drumwright and Murphy as ‘going
native’.[106] Another
incarnation of moral myopia involves opting to remain ignorant about what is
truthful in order to avoid having to look into
the true difficulties.
Drumwright and Murphy name this ‘ostrich
syndrome’.[107]
There are therefore some possible explanations for why marketing
information about confidentiality may fail to rise to the ethical
standard of
doing ‘what ought to be done’. There is little doubt, however, that
significant and detailed information
is required to satisfy an ethical marketing
of mediation on the basis of confidentiality.
In summary, from a
marketing ethics perspective it is perhaps less than desirous to use the concept
of confidentiality as a key promotional
aspect of mediation; certainly not
without providing full information about the qualified nature of the concept in
practice. Indeed,
the accuracy and legitimacy of some of the assertions made
about confidentiality in mediation can be brought into serious question.
We have focussed here on higher ethical consideration in mediation
marketing; that is ‘what ought to be done’ in providing
truthful and
accurate information about mediation as a process and its
‘confidential’ nature. It is not unreasonable,
however, that these
issues draw us into a level of legal concern about the potentially misleading
nature of promoting mediation using
confidentiality. Unfortunately, however
this issue is outside the scope of this particular article. Interestingly,
despite the
potential for liability in the context of misrepresentations about
mediation, in Australia there are, on the basis of our research,
no known cases
in which a mediator has been successfully
sued.[108] Boulle attributes this
to both the existence of statutory immunity for some mediators and the fact that
mediation also finds itself
positioned away from public
scrutiny.[109]
The importance of marketing mediation appropriately and ethically cannot
be understated. What does this mean for the development
of mediation marketing
materials? How is it that moral myopia or moral muteness about ethical issues
of confidentiality in mediation
might be addressed? Some initial suggestions
are made here.
First, the mediation profession must seek out a way to
become uniformly committed to the principle of honestly and accurately
representing
what mediation can realistically offer parties; and the
professional mediation environment must support mediation marketers who ensure
that they honestly represent the process and discourage those who inaccurately
represent the process. Mediation, in its pursuit
of professional credibility
needs professionals in its ranks who will say no when they see an unethical
situation arising in relation
to assertions about confidentiality; they will be
professionals with moral
courage.[110]
Second,
mediation professionals need to be critical and reflective, not only in terms of
how mediation is practised, but also in terms
of how substantive theoretical
issues sit within the practical reality of the mediation room. The mediation
profession needs, as
Drumwright and Murphy state it, professionals who are
‘seeing, talking’
professionals.[111] This article
demonstrates the need for reflective approaches in the mediation profession
about confidentiality. A reflective approach
can be argued as necessary,
however, in relation to many other aspects of mediation used also to promote and
market the process;
for example, consensuality issues in terms of mediated
agreements and the neutrality of the mediator.
Third, a more significant
dialogue must be created amongst and between practising mediation professionals,
as well as with other mediation
experts and stakeholders, such as academics and
government agencies, about these issues. In this way, the reality of the
mediation
room will become more accurately reflected in mediation theory. In
turn, this will impact on the accuracy and appropriateness of
assertions made
about mediation in marketing processes.
Fourth, to create the necessary
professional environment and to foster and encourage appropriate practitioners,
the profession as
a whole must focus on education about difficult issues such as
these. Mediator training is crucial to creating such practitioners,
and
mediation academics also can be seen as having a role in encouraging
intellectual debate within the profession on these issues.
Fifth, there
is a need to emphasise the community element of the mediation profession to
better fit the importance of adhering to
ethical considerations; that is, a
moral community in which ‘good habits are cultivated and
nurtured’.[112] To achieve
this there is a need for strong leadership within the Australian mediation
profession. For example, just as executives
in corporations influence the moral
corporate cultural environment, mediation’s key practitioners and
academics could also
be seen as having a significant role in leading the moral
environment of the mediation
profession.[113]
Finally,
there is a need for a paradigm shift in terms of how the issue of promoting
mediation is perceived and conceptualized. That
is, the profession needs to
move from what might be considered a propagandistic approach to marketing, to an
honest and accurate
approach. This shift should naturally follow the developing
confidence, credibility and legitimacy of mediation as a dispute resolution
profession.
The focus of this article is on encouraging awareness and debate within
the mediation profession about the importance of mediation
marketing practice.
A grounding hypothesis of the article has been that at its present stage of
development in Australia, there
continues to be a significant level of rhetoric
associated with the promotion of mediation, and that this rhetoric requires
exploration
and reflection in terms of whether it can be said to compromise the
ethical nature of the marketing of mediation, and consequently
the process and
the profession also.
As the number of mediation service providers grows
and as clients are faced with a widening choice of options as to who they choose
to facilitate the resolution of their dispute, the marketing of mediation will
become more competitive, and the need to ensure that
it is practised ethically
will become an increasing imperative. In particular, the profession must avoid
‘unsupported claims
that create unrealistic expectations’ about
mediation.[114] A failure
adequately to address these issues will mean that parties to mediation, relying
on mediation marketing claims, may potentially
suffer damage that might be
causatively linked to the marketing process.
Mediation is a valuable and
legitimate professional practice in its own right. It offers multiple benefits
to many parties in different
dispute contexts. Marketing mediation accurately
will not mean that these parties reject mediation. Rather, our view is that the
honest marketing of mediation will more appropriately inform parties in choosing
an appropriate process, and as a result the status
and standing of mediation
will be enhanced.
[∗] BA/LLB(Hons) (ANU) LLM(Hons) (QUT)
Grad Cert in Education (Higher Education) (QUT), Senior Lecturer, Law School,
Faculty of Law,
Queensland University of Technology. President, Women’s
Legal Service, Brisbane. This article draws from: R Field ‘A
Feminist
Model Of Mediation That Centralises The Role Of Lawyers As Advocates For
Participants Who Are Victims Of Domestic Violence’
(2004) 20 The
Australian Feminist Law Journal 65, and also from submissions to the House
of Representatives Standing Committee on Legal and Constitutional Affairs
regarding the reform
proposals. Many thanks to the anonymous referee for their
constructive comments.
[∞] Final year
undergraduate student of the combined degree Bachelor of Laws/Justice at QUT.
Research for this article was funded
through a QUT Law Faculty Special Projects
Grant aimed at developing policy and procedure for encouraging and facilitating
staff/student
collaborative publications. The authors acknowledge with thanks
the valuable comments of the anonymous
referee.
[1] S L Schwartz
‘Mediation: A Magnet for Positive Change’ 2003 58(3) Dispute
Resolution Journal 49, 51 comments that even within the adversarial system,
implying influence from the mediation movement, there is a greater emphasis
on
‘consensus, collaboration and mutual
interests.’
[2] National
Alternative Dispute Resolution Advisory Council, A Framework for ADR
Standards – Report to the Commonwealth Attorney-General, Commonwealth
of Australia, ACT, 2001.
[3] J
Folberg and A Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts
Without Litigation (Jossey-Bass Publishers,
1990).
[4] C Moore, The
Mediation Process: Practical Strategies for Resolving Conflict (Jossey Bass,
1986) 14. For alternative expression of these same elements see: S Wellik,
‘Ethical Standards for Mediation:
Embracing Philosophical Method’
(1999) 10 Australasian Dispute Resolution Journal 257,
258.
[5] L Boulle, Mediation:
Principles, Process, Practice, (Butterworths, 2nd ed, 2005)
10-11.
[6] T Altobelli,
‘Are You Getting Enough? Marketing Mediation’ (1999) 1(9) The
ADR Bulletin 113 highlights the importance of the educational role for
marketing in mediation at 114 commenting: ‘Whether we talk about
promoting
the industry as a whole or marketing the services of individual or collective
mediation providers, the first step is to
have a plan involving
education.’
[7] H J
Gershon and G E Buerstatte, ‘The E in Marketing: Ethics in the Age of
Misbehaviour’ (2003) 48(5) Journal of Healthcare Management 292,
292.
[8] P Kotler and K Lane
Keller, Marketing Management (Pearson Prentice Hall: New Jersey,
12th ed, 2006) 19 and figure 1.4. See also E J McCarthy, Basic
Marketing: A Managerial Approach (Homewood IL: Irwin, 12th ed,
1996); A W Frey, Advertising (Ronald Press, 3rd ed, 1961); W
Lazer and E J Kelly, Managerial Marketing: Perspectives and Viewpoints
(Homewood, rev ed, 1962); and C Lovelock and J Wirtz, Services Marketing:
People, Technology Strategy (Pearson Prentice Hall, 5th ed,
2004).
[9] Altobelli, above
n6, 113.
[10]
Ibid.
[11] F Crosbie,
‘Aspects of Confidentiality in Mediation: A matter of Balancing Competing
Public Interests’ (1995) 2(1) Commercial Dispute Resolution Journal
51, 52
[12] These service
providers were: The Dispute Resolution Centres Queensland, the Institute of
Arbitrators and Mediators, the Community
Justice Centres, NSW, Relationships
Australia, the Family Court of Australia, the Queensland Law Society, the Law
Society of NSW,
the Law Institute of Victoria, Lawyers Engaged in ADR –
Association of Dispute Resolvers (LEADR), the Australian Commercial
Dispute
Centre (ACDC) and Mediate Today. The information was accessed from the internet
sites of these service providers and agencies,
cited below, as at August
2005.
[13] The intention of the
principles is to serve as a guide for the conduct of mediators, to inform the
mediating parties and to promote
public confidence in mediation as a process for
resolving disputes: Institute of Arbitrators and Mediators Australia,
Principles of Conduct for Mediators, 1
<http://www.iama.org.au/docs/medtrconduct.doc>
at August 2005.
[14] Institute
of Arbitrators and Mediators Australia, Principles of Conduct for
Mediators, 2
<http://www.iama.org.au/docs/medtrconduct.doc>
at August 2005.
[15] Mediate
Today, Why Use Mediation
<http://www.mediate.com.au/mediate.htm>
at August 2005.
[16] Department
of Justice and Attorney-General Fact-sheet D4, Mediation
<http://www.justice.qld.gov.au/mediation>
at August 2005. Fact-sheet D1 ‘The Dispute Resolution Centre’
states that ‘The Dispute Resolution Centre (DRC)
was established by the
Queensland Government to provide a free, confidential and impartial mediation
service to the community.’:
<http://www.justice.qld.gov.au/mediation/about>
at August 2005.
[17] Lawlink
(NSW), Community Justice Centres, Frequently Asked Questions
<http://www.lawlink.nsw.gov.au/lawlink/Community_Justice_Centres>
at August 2005.
[18] The Law
Society of NSW, Fast Answers – What is Mediation
<http://www.lawsociety.com.au>
at
August 2005.
[19] The Law
Institute of Victoria, General Legal Information – Alternative Dispute
Resolution
<http://www.liv.asn.au/public/legalinfo/adr>
at August 2005.
[20]
Relationships Australia, Mediation
<http://www.relationships.com.au/services/mediation>
at August
2005.
[21] Family Court of
Australia, What is involved in Mediation? http://www.familycourt.gov.au/presence/connect/www/home/guide/resolution/mediation/step_resolution_mediation_what
at August 2005.
[22]
Queensland Law Society, Frequently Asked Questions About Mediation http://www.qls.com.au at August
2005.
[23] LEADR,
Mediation: What Why When ...
<http://www.leadr.com.au>
at August 2005.
ACDC, How Can I Use ADR? Helping You Decide http://www.acdcltd.com.au at August 2005.
[24] For a general discussion
of confidentiality in mediation see H Astor and C Chinkin, Dispute Resolution
in Australia (Butterworths, 2nd ed, 2002) 178- 186 and Boulle,
above n5, Chapter 15.
[25] See P
Salmon, ‘Why Choose Mediation?’ (1996) New Zealand Law
Journal 7-8, 8; Boulle, above n5 (Butterworths, 1996) 16; V Vann,
‘Confidentiality in Court-Sponsored Mediation: Disclose at Your Own
Risk?’
(1999) 10 Australian Dispute Resolution Journal 195-205,195.
[26] R Charlton, Dispute
Resolution Guidebook (Law Book Company Information Service, 2000)
15.
[27] B Codd, ‘The
Confidential Mediator’, (2002) 21(3) The Arbitrator and Mediator
35, 39.
[28] R A Baruch Bush
‘The Dilemmas of Mediation Practice: A Study of Ethical Dilemmas and
Policy Implications’ (1994) 1 Journal of Dispute Resolution 1,
14.
[29] Boulle, above n5,
452.
[30] L Boulle, ‘Case
Note’, (1992) 3 Australian Dispute Resolution Journal 272,
272.
[31] HA Finlay,
‘Family Mediation and the Adversary Process’ (1993) 7 Australian
Journal of Family Law 63,
74.
[32] Vann, above n25, 195;
and Salmon, above n25, 8. See also V Goldbatt, ‘Confidentiality in
Mediation’ (2000) New Zealand Law Journal 392, 392.
[33] M Shirley and W Harris,
‘Confidentiality in Court-Annexed Mediation – Fact or
Fallacy?’ (1993) 13(6) Queensland Lawyer 221, 223.
[34] Crosbie, above n11,
53.
[35] Salmon, above n25,
8.
[36] Moore, above n4, 26.
See also, Vann, above n25, 195; Salmon above n25, 8; Shirley and Harris above
n33, 223.
[37] Boulle, above n30,
272.
[38] Crosbie, above n11,
52.
[39] See discussion in
Astor and Chinkin, above n24, 178-179; and also Goldbatt, above n32, 392, and
Codd, above n27, 39.
[40]
Charlton, above n26, 14.
[41]
Boulle, above n5, 539-542.
[42]
For a recent discussion of legal issues relating to confidentiality in
mediation see K Downes and K Rohl ‘Confidentiality
in Mediation’
(2005) 25(4) Proctor 41-43. Further, Davies and Clarke acknowledged some
time ago that ‘preserving the confidentiality of ADR processes is one of
the
most difficult legal issues facing the ADR movement today’: I Davies
and G Clarke ‘ADR Procedures in the Family Court
of Australia’
(1991) Queensland Law Society Journal 391,
399.
[43] Boulle, above n5,
539.
[44] See s.112 of the
Supreme Court of Queensland Act, 1991. See also, Downes and Rohl, above
n42, 42.
[45] S.114(1) of the
Supreme Court of Queensland Act, 1991. See also, for example,
Victorian Supreme Court Rules, Order 50.07 (6); and also, s.110P of the
Supreme Court Act, 1970
(NSW).
[46] Available at: http://www.legislation.qld.gov.au/Legislation.htm
(accessed 19 August 2005)
[47]
Section 19N: available at http:// scaleplus.law.gov.au (accessed 19 August
2005). In Centacare Central Queensland v G and K [1998] FamCA 109; (1998) FLC 92-821, the
provision was upheld against an argument that it should be read subject to
s.65E, namely that evidence of what was said in counselling
or mediation should
be given if it was established that it was in the best interests of the child.
Astor and Chinkin, above n24 discuss
the case at 183. See also, JP McCrory
‘Confidentiality in Mediation of Matrimonial Disputes’ (1988) 51
Modern Law Review 442 and Finlay, above n30 at
74-80.
[48] Evidence
Act 1995 (Cth) s 131(1).
[49]
Evidence Act 1995 (Cth) s 131(1).
[50] [2004] FCA
1570.
[51] The Queensland Law
Society provides a model Mediation Agreement at http://www.qls.com.au (accessed 19 August
2005). See also, Salmon, above n25, 8; Charlton, above n26, 246; and R Charlton
and M Dewdney, The Mediator’s Handbook: Skills and Strategies for
Practitioners, (LBC Information Service, 2nd ed, 2004) 344 where
a model agreement to mediate is provided that contains a confidentiality clause
as well as a model confidentiality agreement attachment for advisers and third
parties at 338-344.
[52]
Boulle, above n5, 550-551.
[53]
Council of the Law Institute ‘Guidelines for Solicitors Acting as
Mediators’ (1990) 28(1) Law Society Journal 45, 47.
[54] Charlton and Dewdney,
above n51, 340.
[55] Astor and
Chinkin, above n24, 180.
[56]
[2004] NSWSC.
[57] 789Ten V
Westpac Banking Corporation [2004] NSWSC
[5].
[58] 789Ten V Westpac
Banking Corporation [2004] NSWSC
[9].
[59] Codd, above n27,
43.
[60]
Ibid.
[61] [1998] 2 Qd R
317.
[62] Vann, above n25,
196.
[63] Williamson v
Schmidt [1998] 2 Qd R 317, 325 (Lee
J).
[64]
Ibid.
[65]
Ibid.
[66] H Astor and C
Chinkin, Dispute Resolution in Australia (Butterworths 1992) 233. (note
that this footnote to the old edition has been retained as there is no
comparable sentence in the
new
edition)
[67] Downes and Rohl,
above n42, 43.
[68] G Dann,
‘Confidentiality After Unsuccessful Court-Ordered Mediation: Exemplary or
Illusory’ (1997) 3(3) Commercial Dispute Resolution Journal 212,
212.
[69] [1957] HCA 92; (1955) 99 CLR
285.
[70] AWA Ltd v George
Richard Daniels T/A Deloitte Haskins and Sell (Unreported, SC(NSW), Rolfe J,
No BC9201994, 18 March 1992).
[71] Field v Commissioner for
Railways for New South Wales [1957] HCA 92; (1955) 99 CLR 285, 291 (Dixon C.J, Webb, Kitto
and Taylor JJ).
[72] Crosbie, above n11, 53.
[73] Field v Commissioner for
Railways for New South Wales [1957] HCA 92; (1955) 99 CLR 285, 291 (Dixon C.J, Webb, Kitto
and Taylor JJ).
[74] Boulle,
above n30, 273.
[75] Crosbie, above n11,
52.
[76] Rolfe J in AWA Ltd v
Daniels , above n70, 9-10.
[77]
Shirley and Harris, above n33, 222.
[78] Boulle, above n30, 274.
[79] Ibid
273.
[80] Crosbie, above n11,
53.
[81] Ibid.
[82] (1992) 7 ACSR
463.
[83] AWA Ltd v George
Richard Daniels T/A Deloitte Haskins and Sell (1992) 7 ACSR 463,
468.
[84]
Ibid.
[85]
Ibid.
[86] Gershon and
Buerstatte above n 7, 292.
[87]
C E Hackley, ‘The Meanings of Ethics in and of Advertising’ (1999)
8(1) Business Ethics: A European Review 37,
37.
[88] P H Cunningham
‘The Ethics of Advertising’ in John Phillip Jones (ed), The
Advertising Business (Sage, 1999) 499,
500.
[89] J Seglin,
‘Good for Goodness Sake’ (2002) CFO Magazine (October) 76,
76.
[90] Cunningham, above
n88, 500. See also for example, I Preston The Tangled Web They Weave
(University of Wisconsin Press, 1994) who, at 128, asserts that ‘ethics
begins only where the law ends.’ Preston also
comments that the law ends
too soon and is too blunt an instrument to deal with ethical issues: I Preston,
The Great American Blow-Up: Puffery in Advertising and Selling,
(University of Wisconsin Press, 1996).
[91] Preston (1994) above
n90.
[92] Lovelock and Wirtz,
above n8, 142.
[93] Goldbatt,
above n32, 394.
[94] National
Alternative Dispute Resolution Advisory Council, above n2,
110.
[95] Hackley, above n87,
38.
[96] See for example, FP
Bishop, The Ethics of Advertising (Bedford Square, UK; Robert Hale,
1949); G G Brenkert, ‘Ethics in Advertising: The Good, the Bad and the
Church’ 17 (Fall)
Journal of Public Policy and Marketing, 325-331;
B Leiser, ‘Beyond Fraud and Deception: The Moral Uses of
Advertising’ in Thomas Donaldson and Patricia Werhane
(eds), Ethical
Issues in Business (1979) 59-66; R W Pollay, ‘The Distorted Mirror:
Reflections on the Unintended Consequences of Advertising’ (1986) 50
(April) Journal of Marketing 18-36; P Santilli, ‘The Informative
and Persuasive Functions of Advertising: A Moral Appraisal’ (1983) 2
(February) Journal of Business Ethics
27-33.
[97] Institute of
Arbitrators and Mediators Australia, Principles of Conduct for Mediators
(2003) [3] http://www.iama.org.au/docs/medtrconduct.doc
at August 2005.
[98] National
Alternative Dispute Resolution Advisory Council, above n2, 110. Further, for
example, the Queensland Law Society and the
Australian Law Council’s
standards of conduct for solicitors who act as mediators, provide that the
mediator is obliged to
define mediation in context so that the parties
understand the differences between it and other forms of conflict resolution
available
to them: L Boulle, ‘Emerging Standards for Lawyer
Mediators’ (1993) 23(6) Queensland Law Society Journal 575, 575,
and Law Council ‘Guidelines for Solicitors Acting as Mediators’
(1990) 28 (1) Law Society Journal
45.
[99] M E Drumwright and
P E Murphy, ‘How Advertising Practitioners View Ethics: Moral Muteness,
Moral Myopia, and Moral Imagination’
(2004) 33(2) Journal of
Advertising 7, 11.
[100]
Drumwright and Murphy, above n99, 11, drawing from the work of F B Bird and J A
Waters, ‘The Moral Muteness of Managers’
(1989) 32 (Fall)
California Management Review
73-88.
[101] F B Bird,
The Muted Conscience: Moral Science and Practice of Business Ethics
(Quorum Books, rev ed)
27.
[102] Drumwright and
Murphy, above n99, 15.
[103]
Ibid. Drumwright and Murphy state, the Pandora’s Box syndrome can
‘block reflection and critical thinking.’
Ibid.
[104] Ibid
11.
[105]
Ibid.
[106] Ibid
13.
[107]
Ibid.
[108] See on the point
of mediator liability, for example, A Stickley, ‘Pinning Civil Liability
Upon a Mediator: A Lost Cause of
Action?’ (1998) 19(3) Queensland
Lawyer 95-105, and A Lynch, ‘Can I Sue My Mediator? – Finding
the Key to Mediator Liability’ (1995) 6 Australian Dispute Resolution
Journal 113-126.
[109]
Boulle, above n5, Chapter
14.
[110] Drumwright and
Murphy, above n99, 17.
[111]
Ibid.
[112] Drumwright and
Murphy, above n99, 18 referring to the Aristotelian concept of good community,
Aristotle, Nicomachean Ethics (New York Macmillan,
1962).
[113] R C Soloman,
Ethics and Excellence (Oxford University Press,
1992).
[114] Gershon and
Buerstatte, above n7, 293.
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