Confidentiality American Style
So it appears there will be an NHL hockey season. Not that I'm surprised (see my December 6, 2012 entry NHL Lockout Revisited).
What's more interesting are some of the side stories that have emerged over the last 48 hours. Late last night Jeff Klein of the New York Times reported that representatives of the players and owners spent Friday bargaining with the assistance of U.S. federal mediator, Scot L. Beckenbaugh, deputy director of the Federal Mediation and Conciliation Service. Beckbenbaugh shuttled back and forth between the two sides Friday for 12 hours.
As a result of those discussions, Beckenbaugh thought the time was ripe to bring the key players, Commissioner Bettman and Union boss Fehr, together for face to face discussions. Bettman and Fehr met from early afternoon Saturday and into the evening (see N.H.L. Meeting Yields Optimism Even as Players Vote on Whether to Renew a Threat). We now know that those discussions led to a tentative deal shortly after 5:00 am this morning (see Lockout over! NHL, players reach tentative deal on CBA).
What caught my eye was a statement made by Klein in the New York Times article about the process used by Beckenbaugh during the lengthy shuttle negotiation sessions that took place Friday between player and owner representatives. Mr. Klein noted: "Under federal mediation rules, Beckenbaugh was not allowed to reveal to one side what the other side had said. Rather, he was bound to discuss the issues with each side and learn how far each was willing to go without indicating what the other had said."
Confidentiality is a hallmark of mediation here in Canada. However, unlike the U.S., in the private sector, we do not have set "rules" that govern confidentiality and the sharing of information during shuttle negotiation bargaining sessions (caucusing). Issues around the confidentiality of the mediation process are typically addressed by contract between the mediator and the parties. As well, from my experience, issues of confidentiality and information sharing in caucus are addressed by the mediator with the participants at the start of a mediation session. The mediator will approach the issue in one of two ways: 1. confirm that all communiciation shared in caucus with the mediator cannot be shared with the other side(s) (an approach that is consistent with the U.S. federal rule); or, 2. confirm that all information provided by one party in caucus can be shared with the other(s) unless the party providing the information requests that all or a portion of what they've said is to remain confidential. In other words, using the second approach, the mediator encourages the sharing of information and places the onus on the party resisting disclosure to flag the information they don't want shared.
I prefer the latter approach. I confirm with the parties at the start of the mediation that all communication provided in caucus can be shared with the opposing side(s) unless they identify that all a portion of what they've said is to remain confidential. "Information" is the currency we trade in when we mediate. Accordingly, it is my experience that information sharing leads to enlightenment, fosters a deeper exploration of underlying interests and enhances the ability of the parties to become better informed about the range of possible outcomes.
That said, it is clear that confidentiality in caucus is handled differently in the U.S. and I wonder whether the "federal mediation rule" helped or hindered Beckenbaugh in bringing the parties together. Did the rule help Beckenbaugh in managing the shuttle negotiation process that occurred Friday? By not sharing what each side was saying, was the risk of escalating the conflict over differences and entrenched positions reduced, putting Beckenbaugh in a position to solely determine the right moment to bring the heavy hitters to the table for face to face bargaining? Or, perhaps confidentiality in caucus had nothing to do with achieving success - that the real impetus was timing, as the parties closed in on the 11th hour with the threat of losing the season a real possibility? Maybe after all the posturing, egos and positions, the time was finally ripe for a resolution? We may never know the answers.
