Safeguarding adults: Mediation and family group conferences

Confidentiality

Key messages from policy and research

  • Confidentiality and disclosure are two central aspects of mediation and FGCs.
  • Without confidentiality, participants may be unwilling to communicate freely and openly, and this might limit the discussion needed to resolve disputes (CCEL 2012).

Practice points

Mediators and FGC coordinators should explain to participants:

  • what information shared with mediators and FGC coordinators is confidential and what is not – and if it is not, under what authority
  • the circumstances that may require them to share confidential information with a third party – including disclosure of an actual or potential threat to human life or safety, and actual or potential abuse
  • what information shared with other service providers and professionals is confidential and what is not – and if it is not, under what authority
  • the responsibility of participants to each other to keep information shared during the mediation or FGC meeting confidential
  • if they are compelled to disclose information shared during the mediation or FGC meeting to a court in any subsequent court proceedings involving the subject matter of the mediation or FGC
  • the status of a mediation agreement or FGC plan.

Mediation and FGCs are both about sharing information to develop options and resolve problems. Confidentiality and disclosure are central to these processes. Mediators and FGC coordinators are responsible for ensuring that all participants understand the meaning of confidentiality and why information shared during the mediation or FGC meeting is confidential. They must also ensure that participants understand the fact that there are circumstances when confidential information may have to be shared with a person or organisation that is not involved in the process. Mediation and FGC services must be able to produce evidence to commissioners on how they deal with issues of confidentiality.

Confidentiality in mediation

Confidentiality is a key benefit of mediation but it is not absolute. This means that there are circumstances where the mediator may have to give some information that is shared during mediation to a third party.

The mediator has a duty to not disclose any information obtained through the mediation process to anyone who is not a party to it. They must inform participants at the start of the process of the limits to confidentiality and the circumstances where confidential information would have to be disclosed. This should be included in the agreement to mediation, which the participants must sign. The mediator may have to share confidential information with a third party – for example, the disclosure of an actual or potential threat to human life or safety, actual or potential abuse or when required to do so by judicial authority with the power to compel disclosure. They must tell participants if they are obliged to share confidential information with a third party, and invite them to disclose that information to the third party voluntarily. Any information shared should be limited to that which is absolutely necessary. The mediator must not share information given by one participant in a separate meeting, to another participant where that first participant has expressly prohibited it. They can share information where it is necessary – for example with social workers – as long as all of the participants consent to this.

Confidentiality in FGCs

During FGCs, family members are not asked to share personal information while professionals are present. The defining attribute of FGCs is private family time and this sets them apart from other family-led decision-making approaches. Private family time is designed to promote open and honest discussion. Without private family time, family members may not feel comfortable challenging one another on important issues, which could affect the quality of the plan produced (Daybreak 2011).

The family should be told that the referrer will distribute the plan to additional key individuals, which may include judges, managers or a new staff member who is taking over the case. In an FGC, it is equally important that all participants give written informed consent before the FGC process goes ahead, even though the family is not asked to share personal information while the referrer and other professionals are present. If any of the participants refuse to give consent, the FGC process should be terminated. It is important that the referring agency asks for a copy of the consent document used by the FGC service.