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National Mediation Conference 2012

Has confidentiality in family dispute resolution reached its

use-by date?

• Federal Magistrate Dr Tom Altobelli

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Session goals

• How did we get here, and why?

• Arguments for and against confidentiality provisions

• What will next generation confidentiality rules look like?

• Application to diverse contexts.

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Aim

• Not to fill your heads with knowledge but..

• To start a fire

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4

Courtroom as a dark place

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Problem stated

• Insufficient information at a critical time in litigation process

• Family violence hidden

• Critical information is available, but not to the court

• Confidentiality equals privilege

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Problem stated

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Evaluations of Australian family law critical about confidentiality

• An obvious difficulty here is that some of these records, including the records of the dispute resolution services, will be confidential, as a result of legislative provisions that both prevent the officers from disclosing the material, and prevent it from being admitted into evidence.

• The confidentiality of the process comes at a price, because it seems clear that the protection of children and other family members would in some cases be enhanced if the material were available.

• I simply note that in my view the court’s ability to conduct a risk assessment process, and its capacity to protect the children and families that come before it, would almost certainly be enhanced if it had access to relevant information held by external agencies, including dispute resolution agencies. (Chisholm)

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Evaluations of Australian family law critical about confidentiality

• Currently, much relevant information may be collected by family relationship service professionals in screening and assessment processes, but this information is not transmissible between professionals in this sector and professionals in the legal sector, or between other agencies and services responsible for providing assistance. Effectively, families who move from one part of the system to the other often have to start all over again.

• For families already under stress as a result of family violence, safety concerns and other complex issues, this may delay resolution and compound disadvantages. (AIFS)

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US research about confidentiality

• Psychotherapist-Patient Confidentiality

– Daniel Shuman and Myron Weiner

– No support for hypothesis that psychotherapy privilege increases the number of patients visiting therapists, or encourages them to begin therapy early, or reduces tendency to withhold information

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US research about confidentiality

• Attorney-client confidentiality and privilege

– Yale Law Journal 1962

– A substantial majority of clients would continue to use lawyers even if secrecy were limited

– Tomkins County Study on Confidentiality 1989

– Even though clients know there is privilege, 11% would not disclose information to their lawyers

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US research about confidentiality

• Confidentiality of therapeutic communications in psychology

– Miller and Thelen 1968 Prof Psychol Res & Prac

– If you tell clients about limits to confidentiality, they won’t disclose everything

– Laws that limit privacy protection may discourage certain patients from being candid in the first place and such laws may actually hinder the treatment these laws were intended to facilitate

– To promote patient disclosures, it may be better to have no privilege than one with exceptions

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US research about confidentiality

• Confidentiality in educational research

– Yu, 2008, Journal of Academic Ethics

– All researchers considered confidentiality to be their main or fundamental responsibility towards participants in their research

– Not one researcher asked participants if they wanted their responses to be confidential

– Conclusion : the construct of confidentiality appears to be internalized without conscious reasoning and reflection as to the necessity for it on the part of the researchers

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Statutory confidentiality

• Family Law Act (Australia) exceptions too narrow

–Admission of child abuse or risk

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In defence of confidentiality

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Critique of confidentiality rules

• No evidence to support claims other than anecdote

• No evidence about level of candour in confidential mediation

• Philosophical issue when parties not given choice

• Either over or under inclusive

• Adequate legal protection elsewhere

Family Consultants’ confidentiality survey

Conducted on 5 April 2012

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Family Consultants

• Family Consultants employed internally by the Family Law Courts

• Degree in Social Work or Psychology

• Minimum of 5 years experience

working with children and families

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General Description Of A S11F Intervention

• It can potentially occur at any point in the

proceedings. • Preliminary assessment and screening opportunity. • An early intervention - often immediately following

an application. • Child focussed. • Parents only or child inclusive. • Admissible in the Court process.

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Purpose Of A S11F Intervention

• To identify risk issues for the parents and/or children [e.g. family violence, child abuse, developmental concerns].

• To facilitate the resolution of the parental dispute. • To assist Judicial Officers in making interim decisions. • To provide feedback to parents and the Court about the

children’s functioning and views. • To facilitate appropriate referrals for the parents and

children. • To assist the practitioners in formulating interim and if

possible, final orders. • To assist the Court in its case management.

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Number of Responses per Region Q.1 The number of responses by Region

Out of 94 Family Consultants nationally a total or 41 responses

94 = 77 from 4 regions and 17 from WA

16

5 5

78

0

2

4

6

8

10

12

14

16

18

NSW/ACT QLD SA/NT VIC/TAS WA

NSW/ACT

QLD

SA/NT

VIC/TAS

WA

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Pre / Post 2006 Q 2: When did you commence working with Child Dispute Services?

Pre=18

44%

Post=23

56%

Post

Pre

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Do parents Express concerns Q3: In your current role as Family Consultant do parents express concerns

about the lack of confidentiality in s11F conferences?

Do parents express concerns

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14

3

0 00

5

10

15

20

25

30

Never Rarely Sometimes Regularly Always

Never

Rarely

Sometimes

Regularly

Alw ays

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Do children express concerns Q4: In your current role as Family Consultant do children express concerns

about the lack of confidentiality in s11F conferences?

6

1817

0 00

2

4

6

8

10

12

14

16

18

20

Never Rarely Sometimes Regularly Always

Never

Rarely

Sometimes

Regularly

Alw ays

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Benefits – Lack of Confidentiality Q5: In your current role as Family Consultant do you think there are benefits

in relation to the lack of confidentiality in s11F conferences?

2%2%

96%

No

Didn't Answer

Yes

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Drawbacks – Lack of confidentiality Q6: In your current role as Family Consultant do you think there are drawbacks

in relation to the lack of confidentiality in s11F conferences?

54%

5%

41%

No

Didn't answer

Yes

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Benefits in confidential conferences Q7: Do you think there are benefits in confidential conferences in the court

settings?

61%

5%

34%

No

Not answered

Yes

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Benefits to community based FDR Q8: Do you think that there would be benefits to community based FDR being

admissible?

29%

12%

59%

No

Not Answered

Yes

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Drawbacks to Community Based FDR Q9: Do you think that there would be drawbacks to community based FDR being

admissible?

20%

5%

75%

No

Not Answered

Yes

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Pre 2006 - legislative change concerns Q10: Did you have concerns about the legislative changes in relation to the loss of

confidentiality prior to implementation.

8/18

44%

1/18

6%

6/18

33%

3/18

17%

No Pre

Not answered Pre

Somewhat Pre

Yes Pre

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Experience justify concerns Q10C: Did your experiences justify your concerns?

9/18

50%

5/18

28%

4/18

22%

No Pre

Unanswered Pre

Yes Pre

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Options for the future

• No confidentiality, but opt in

• Presume confidentiality, but opt out

• Confidentiality only if you settle

• Highly definitive e.g. type of information, purpose for which confidential, person able to assert, person against whom it can be asserted

• Other…

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Discussion