Week 20: Confidential Information in Role-plays

SIX different types of role-plays can be considered:

1. Role-play without any confidential information.
2. Role-play with confidential information.
3. Role-play with different set of confidential information to different groups.
4. Role-play without giving confidential information but asking the participants to give their own confidential information.
5. Same Role-play (i) without confidential information to a group or two, (ii) with same confidential information to a group or two, (iii) with different set of confidential information to one or two groups, and (iv) same role play without confidential information but with a direction to the participants to create their own peculiar confidential information which may lead to the resolution of dispute.
6. Same Role play with confidential information given by third parties, with a request to the mediator not to reveal it to the disputing parties.

1. Role-play without any confidential information

Such role plays are generally used to bring the clarity on the procedural aspects of mediation. This is purely process related. In such role plays emphasis will be on whether the participants have understood the nuances of procedural aspects of mediation. The focus is on introducing the participants to the concept of structuring the joint and private sessions. This enables them to conduct joint session and private sessions effectively.

Trainer will draw the attention of the participants to meticulously follow the instructions regarding greeting, seating, self-introduction, introduction of the participants, points to be covered in the opening statement.

In such role plays emphasis is never laid on the settlement.

Such role plays are often concluded with one joint and two private sessions each with each of the disputing parties.

It is advisable to give first role-play to the participants without any confidential information and limiting it to the understanding of the structuring of the mediation process.

The second role play without confidential information can lay emphasis on demonstrating their understanding of body language, active listening, acknowledging, summarising, paraphrasing, restatement, reflection, re-framing, filtering, questioning skills, handling emotional outbursts.

2. Role-play with confidential information

In such role plays uniform confidential information is given to all the participants (excepting to those who are playing the role of mediators).

Trainer has to instruct the participants playing the role of disputing parties not to reveal the confidential information on their own and the participant playing the role of mediator is to be instructed to see whether he/she can get the confidential information if any from the disputing parties.

In such role plays the de-briefing should focus on:

i) REVEALING OR NOT REVEALING THE CONFIDENTIAL INFORMATION

a. Whether the mediator could get the confidential information?

b. If so, what made the disputing party/s reveal the confidential information?

c. If not, why did the mediator fail to get the confidential information?

ii) TECHNIQUES 

Techniques to be used by the mediator to get the confidential information:

a. Importance of empathy

b. Setting the atmosphere

Even this second type of role plays with confidential information need not be taken to the stage of settlement or no settlement. It should focus on the element of getting the confidential information.

The next role-play should have confidential information and the parties must be encouraged to move till the stage of settlement or no settlement.

The debriefing here should have an additional element:

1. Taking note of settlement arrived at by different groups.
2. Drawing the parties’ attention to the fact that with the same set of confidential information different groups have agreed upon different settlement terms.

This will make the participants understand that there can never be a single solution to any problem with same set of facts and that every problem is unique and that solution to each problem of each individual is different.

Trainer has to make the trainees understand this concept very clearly by the end of the debriefing.    

3. Role-play with different set of confidential information to different groups.

Such role plays are generally used in refresher courses, where the participants have already handled around 50 mediations.

In such role-plays, parties must be encouraged to move till the stage of settlement or no settlement.

De briefing should focus on:

1. Each group disclosing the confidential information at the time of debriefing to other groups
2. Taking note of settlement arrived at by different groups.
3. Drawing attention of the participants to the fact that different groups with different sets of confidential information, may or may not have the very same settlement terms.

4. Role play without giving confidential information but asking the participants to give their own confidential information while involving in the role.

Such role plays are to be used in advanced mediation training courses.

In such role plays the focus is not just on the trainee who plays the role of a mediator but on the trainees who play the role of disputing parties. To see whether the trainees can step into the shoes of disputing parties. When participants are asked to create their own confidential information, they try to step into the shoes of the disputing parties. They virtually become parties but not just role players.

In such roleplays, parties must be encouraged to move till the stage of settlement or no settlement.

De briefing should focus on:

1. Each group disclosing the confidential information at the time of debriefing to other groups and informing whether such disclosure of confidential information has helped in the resolution of dispute.
2. How in the given set of same facts, confidential information vary from person-to-person
3. What is confidential to a party may or may not have any nexus to the resolution of dispute.
4. Taking note of settlement arrived at by different groups.
5. Whether the Mediator ignored the confidential information.
6. How did the participants frame the confidential information? What was the basis for this?

5. Same Role play without confidential information to a group or two, with same confidential information to a group or two, with different set of confidential information to one or two  groups, and same role play without confidential information but with a direction to the participants to create their own peculiar confidential information which should lead to the resolution of dispute.

Instruction should be given to

1. a group to disclose the confidential information voluntarily.
2. a group not to disclose the confidential information voluntarily to the mediator but to see whether the mediator makes his/her efforts to provide an atmosphere for revealing the confidential information.
3. a group to disclose the confidential information to the mediator with a rider not to disclose the same to the other side even though such communication would result in the resolution of dispute.
4. a group to disclose the confidential information to the mediator and also giving the discretion to the mediator to either disclose it to the other side or not to.

 Such role plays must be given to very seasoned mediators in advanced training programs.

It is ideal to precede such role plays with a facilitation exercise on confidential information, either on the same day or on the previous day.

Some of the topics that may be considered for facilitation in such cases:

1. Will every dispute have confidential information?
2. Is it necessary for the mediator to presume the existence of confidential information in every mediation?
3. Should mediator persuade the parties to disclose the confidential information?
4. Should the mediator disclose the confidential information to the other side, (when permitted by the party), or should the mediator provide an atmosphere for a   party  to disclose it to the other party?
5. Will disclosure of confidential information by the disputing parties definitely result in settlement?

6. Same Role play with confidential information given by third parties, with a request to the mediator not to reveal it to anyone.  

It is desirable to give such role plays to seasoned mediators in advanced courses.

Debriefing should focus on:

1. Handling mediator’s dilemma as to whether the confidential information given by a third party has to be revealed to the disputing parties or not.
2. How to overcome the consequences of not revealing the confidential information.
3. What is required to be done to see to it that the third parties come forward to reveal the confidential information to the mediator in the presence of the disputing parties?

It is better to precede the role play with a facilitation exercise on:

Whether the confidential information given by a third party has to be revealed to the disputing parties or not.

THE LOGIC BEHIND:

1. When the role-play is followed by the facilitation exercise the concepts will get more concrete.
2. Mediators will know the myth and reality about the confidential information.

CONCEPTS:

1. Understanding the Importance of confidential information in Mediation.
2. Party’s right of self determination governs the field of confidential information.
3. At times, a confidential information is just another piece of information.
4. Disclosure of confidential information never assures settlement.
5. Mediator’s Dilemma 
6. Techniques to make the parties reveal the confidential information voluntarily.

COMMON MISTAKES:

1. Giving the role play with or without confidential information and asking the participants to go ahead with it.
2. Debriefing being limited to the terms of settlement or finding out whether there was settlement or not.
3. Debriefing without touching upon the concepts to be reinforced. 

Point to ponder:

If I had to get myself trained by someone would I have chosen “me “ to be my trainer? If the answer is “NO”, it is time to work on myself.

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(All Copyrights reserved by the author S.Susheela)