Week 6: Confidentiality

Part V.   Confidentiality                          February 28, 2009 

When you file a lawsuit in a court, the lawsuit and information related to it become public information.  Most courts today either utilize electronic filing or will be soon.  You may not think about it or realize it, but this means anyone can go online and find out about your dispute. 

Most of the time, parties involved in a dispute would prefer that the fact that they are involved in a conflict as well as its details remain a private matter.  This is especially true of disputes that involve delicate or personal matters, like divorces, probate cases or business disputes between and within families.  But it is also important in cases involving “mission-based organizations” – churches, hospitals, schools and colleges, non-profits, social capitalism enterprises, foundations, green companies, etc. -- for whom reputations and confidentiality are important.   

Confidentiality is also vital in disputes between business or personal contacts in which it is important that their relationships stay healthy and not be damaged by things like lawsuits.  The more public and protracted the dispute, the better the chance that strategic relationships will be damaged through litigation.  

There are many cases in which all parties would probably be better served by a confidential dispute resolution process.  Matters like the well-known Demoulas Supermarket case (involving a family owned Massachusetts business embroiled in a litigated case that played out for years in the courts), clergy sex-abuse matters, power struggles within non-profit organizations, sensitive hiring or contract dispute cases involving municipalities, sexual harassment or discrimination cases in colleges, private high schools or other mission-based organizations come to mind.  

Recent cases in the news could benefit from confidentiality:  The North Adams (MA) story about the conflict within the Roman Catholic Church over closing local parishes, recently featured in Time magazine.  Last week, in a Boston Globe story about a conflict within the town of Westwood over attempts by a family or group to bring a horse farm business into the town, it was obvious that there were many conflicting interests among the parties involved and some sensitive issues to address.   

Not only would a public litigation help to escalate the tensions, it is also incapable of effectively addressing all the specific and vital interests involved and coming up with good resolution.  Processes like mediation, collaborative law and case evaluation are better suited for handling these kinds of cases.  They offer the safer container of a confidential process, allowing parties involved to openly discuss the issues, air out their concerns and work together on creative solutions, outside of the public spotlight.  

In our proactive training workshops on preventing sexual harassment or discrimination, we suggest that people in the workplace set a high standard for themselves and their companies.  We urge that company policies and individual behavior go far beyond the legal standards.  And we give them this way to measure their actions:  Assume that whatever you are about to do or say in the workplace is going to be front page news in the New York Times tomorrow;  if you are comfortable with that public disclosure, then go ahead and do or say what you had in mind.  If not, maybe you should stop and rethink your action. 

If we all operated that way, many claims and lawsuits would be prevented.  Unfortunately, many companies, business entities and non-profit organizations don’t always operate at that heightened standard, and disputes arise.  When the disputes do surface, it may be healthier, easier and more appropriate to address the conflict and work toward a more lasting and meaningful resolution if that collaborative negotiation process or mediation can be done in the privacy of the negotiating room, rather than in a public forum.                  

Companies, organizations and individuals in disputes are not often motivated or focused on things like respect, civility, empathy, equity, fairness or just being gracious in our dealing with the other party to the dispute.  But the truth is, these elements go a long way toward creating a better environment for negotiation, establishing some trust, and ultimately reaching a more complete and lasting resolution.  The element of confidentiality helps bring these factors into play, increasing the likelihood of a “win-win” resolution.  

Next week:  Civility, respect, empathy and doing it right.