News
Keeping mediation secret
First published in The Independent, 18 July 2007.
Confidentiality is an important issue for international government organisations.
Most country's foreign service entities maintain a classification system for protecting confidential material. Classification formalises what constitutes a "state secret" and accords different levels of protection based on the expected damage that the information might cause in the wrong hands.
Although classification systems vary between countries, most employ four or five different standards of confidentiality - ranging from "Restricted" (a low level of potential risk) to "Top Secret" (the dispersion of which could cause "exceptionally grave damage").
While perhaps not at quite the same level of national importance, most companies in New Zealand would probably also consider certain information to be "classified" in a similar way.
Most employers would probably consider their organisations hold, and potentially depend upon, information which is confidential to them. They would probably also argue that, depending upon the particular information, "leaking" might constitute a low level of corporate risk - or, at the high end, "exceptionally grave damage" to their business.
In an employment law context, confidentiality is also an important part of the dispute resolution process in New Zealand.
Mediation is the primary problem-solving mechanism for employment problems in New Zealand - and an essential part of the mediation process is its confidentiality.
Participants in mediation are reminded about the confidentiality of the process at the outset - and must commit to it as a prerequisite to commencing mediation itself.
Further, most agreements reached at mediation are expressed to be confidential - meaning that the parties to a settlement acknowledge that its terms remain secret to them (unless they agree otherwise).
But how far does this confidentiality extend? And what happens if a party to a mediation breaches the requirement of confidentiality?
A recent decision of the Employment Relations Authority, Plimmer v Hawksbury Community Living Trust (Unreported, Employment Relations Authority, Christchurch, 28 March 2007), examines this issue.
Ms Plimmer was employed as a Senior Support Worker at a residential care facility in Christchurch. In 2004 she began to experience difficulties with her manager.
In December 2004, the parties sought the assistance of the Department of Labour's Mediation Service. At the mediation, issues were discussed and a Record of Settlement signed. Soon afterwards, however, Plimmer disclosed to a colleague that the mediation had taken place.
In the course of her conversation Plimmer mentioned that her manager and Plimmer's son were amongst those who had attended. She also said that her manager had at one stage burst into tears and left the mediation room.
Subsequently, the manager learned about Plimmer's conversation - and her disclosures concerning the mediation. She raised the matter as a disciplinary issue, and told Plimmer that her conversation constituted a breach of confidentiality. In the manager's view, such breach allegedly "irreparably damaged" the employment relationship between them.
An investigation ensued, following which the employer made a decision to dismiss Plimmer.
Plimmer alleged that her dismissal was unjustified, and pursued her claim to the Employment Relations Authority.
The Authority considered the relevant provision in the Employment Relations Act concerning confidentiality of mediation. It concluded that the statute required Plimmer to keep confidential any statement or admission made in the course of mediation.
The Authority concluded, however, that this prohibition did not extend to information about who had attended the mediation, nor about the reactions of participants during the mediation process.
It found that there was no evidence that Plimmer had disclosed any information about discussions held at mediation, or details about what had been agreed.
On this basis, the Authority concluded that Plimmer's conversation had not breached the confidentiality of the mediation - and that her dismissal was unjustified accordingly.
On one hand, one might have sympathy for Plimmer's position. It is only natural that colleagues will know about the fact of an employment dispute - and possibly also the fact of a mediation designed to address it. In responding to expected questions about mediation, one might expect an employee naturally to pass on some information to a co-worker.
On the other hand, however, an employer might have a natural expectation of a complete cloak of confidentiality applying to mediation. In that context, it might justifiably have concern about the disclosure of information about such things as a manager bursting into tears in reaction to events at the parties' meeting.
Perhaps the moral of this story is that employees should exercise great caution in disclosing any matters related to mediation - but also that employers should not expect that everything associated with a mediation will necessarily be kept "Top Secret".
