Written by Alfred Zeiler CPA, CBA, CVA
I recently participated in a mediation involving a collaborative case that was in danger of falling apart. As the collaborative financial neutral, I had been moving between the two caucus rooms with the mediator, helping the parties and their attorneys work through the remaining financial issues.
That changed when one attorney told the mediator, “We want to tell you something, but we do not want the other side to know.” Before the information was disclosed, I asked to leave the room.
I did not leave because the request was improper. Confidential communications are a normal and essential part of mediation. I left because my role was different from the mediator’s. A mediator can hold information in confidence while continuing to serve as a neutral. In my role as the collaborative financial professional, however, neutrality depends on transparency. I cannot privately receive substantive information from one party and still assure the other that everything affecting my work, analysis, and judgment is being handled openly.
The moment raised an important question: What happens when the confidentiality that makes mediation work conflicts with the transparency that makes the collaborative financial neutral trusted?
Two Different Meanings of Neutrality – A mediator is a process neutral who can receive confidential information from each party without sharing it. A collaborative financial neutral serves both parties jointly, and that role depends on both parties knowing that the financial professional is working from the same information available to everyone.
Why Private Information Creates a Problem – Once the financial neutral receives confidential information, it cannot be “unheard.” Even if it is never expressly used, it may consciously or unconsciously influence the neutral’s questions, assumptions, analysis, or recommendations.
Leaving the Room Protects Everyone – Leaving before confidential information is disclosed protects both parties, their attorneys, the mediator, and the integrity of the collaborative financial neutral’s role. It also prevents any later concern about what the financial neutral was told, what remained undisclosed, and whether that undisclosed information affected the neutral’s work.
Financial Information Versus Settlement Strategy – The financial neutral does not need to know every confidential concern or negotiating tactic discussed during mediation. However, financial facts or assumptions that could affect the neutral’s analysis should be disclosed openly and addressed with both parties.
Establishing the Rules Before Mediation – Before mediation begins, the participants should discuss how confidential communications will be handled. A simple protocol is for the financial neutral to leave before any confidential discussion begins and return only after it has concluded.
Bottom of Form
A mediator can remain neutral while holding confidences. A collaborative financial neutral preserves neutrality by refusing to receive them.
