Privadentiality: Developing a Coherent Framework for Establishing Communication Protections in Family and Child Protection Dispute Resolution Methods

• Published date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12453
• Date: 01 January 2020
• Author: Sharon Press,Gregory Firestone

PRIVADENTIALITY: DEVELOPING A COHERENT FRAMEWORK FOR

ESTABLISHING COMMUNICATION PROTECTIONS IN FAMILY AND

CHILD PROTECTION DISPUTE RESOLUTION METHODS

Gregory Firestone and Sharon Press

The emergence of innovative family and child protection dispute resolution (DR) methods has resulted in a varying array of

communication protections. Review of these communication protections in the United States reveals a lack of consistency

and clarity within each form of DR, and no clear policy to guide the development of the different communication protections

across the spectrum of DR methods. This article proposes a new term, privadentiality, to describe communication protections

which may be provided for a wide range of DR methods and a framework for categorizing DR methods in order to develop

more consistent and appropriate communication protections across the spectrum of DR. This article concludes with recom-

mendations to improve party and professional understanding of DR communication protections; protect families from escalat-

ing conflict; promote the integrity of DR methods; and enable courts to appropriately review and, where appropriate, approve

DR outcomes.

Key Points for the Family Court Community:

Each form of family and child protection dispute resolution has different confidentiality, privilege or other communi-

cation protections.

The term confidentiality is used to mean different concepts and often is confusing.

The term, privadentiality, is proposed to refer to dispute resolution communication protections that relate to all

dispute resolution participants in contrast with confidentiality protections which typically only bind the

professional.

Dispute resolution methods are categorized according to the underlying nature of the method and levels of

privadentiality protection are proposed for each.

Professionals and the court need to clearly inform parties of the extent to which parties can expect their communica-

tions to be privadential.

Keywords: Arbitration; Collaborative Law; Confidentiality; Family Group Conferencing; Mediation; Parenting Coordina-

tion; Privadentiality; Privilege.

Communication protections limiting disclosures outside of family and child protection

1

dis-

pute resolution (DR) processes in the United States are inconsistent and confusing. Given the

importance of enabling parties to self-determine, in an informed manner, what to disclose within

any dispute resolution process, professionals and policy makers need to create more consistent,

constructive, and understandable communication protections. While it is reasonable to provide dif-

ferent communication protections across different DR methods, there does not appear to be any

clearly established rationale for the different communication protections offered for various

methods.

It is time to study the spectrum of DR methods and develop a coherent framework for when

communications should be protected. Part I of this article will review the evolution of the most

common types of family and child protection DR methods. Part II will identify the lack of defini-

tional clarity in the term “confidential”and propose a new term, privadentiality,

2

to help address the

confusion. Part III will review the rationale for providing communication protections. Part IV

Corresponding: gfiresto@usf.edu; sharon.press@mitchellhamline.edu

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 9–25

© 2020 Association of Family and Conciliation Courts

examines communication protections across the spectrum of DR methods. Part V will propose a

new paradigm for establishing privadentiality protections; and Part VI will offer recommendations

for remedying some of the inconsistency and confusion.

This article focuses on what DR communications can be disclosed outside a DR method and

therefore, will not address communication protections within a process. For example, this article

will not discuss circumstances where the “neutral”

3

may meet privately with some DR participants

(e.g., a mediation caucus) and be prohibited from sharing with other participants what the neutral

learned in the private meeting, absent the permission of the disclosing participant. Generally, we

also will not be reviewing ethical rules governing disclosures outside the DR process by the neutral

to the court or elsewhere. Given the multitude of varying ethical standards and rules that would

need to be considered, such a review would more likely obfuscate rather than assist in developing a

new framework.

PART I: EVOLUTION OF DR METHODS

Over the past fifty years, there has been an exponential growth in dispute resolution (DR)

options to resolve family and child protection disputes.

4

Beginning in the early 1970s, courts

began to experiment with the use of mediation for parenting plan disputes. A seminal talk by

Frank Sander at the “National Conference on the Causes of Popular Dissatisfaction with the

Administration of Justice”(Pound Conference) in 1976, encouraged the consideration of alter-

natives to litigation,

5

and two pioneering family mediation books, by O.J. Coogler

6

and John

Haynes

7

respectively, delineate d and promoted th e initial development of mediation as an

effective alter native to resol ving most fam ily law disputes. By 1995, thirty-three states had

adopted statutes or court rules mandating mediation

8

in contested parenting plan

proceedings.

9

Child protection mediation started in the 1980s,

10

and by the 1990s, was highlighted by the

National Council of Juvenile and Family Court Judges as an alternative method for improving court

practices in child abuse and neglect cases.

11

In addition, the enactment of the U.S. Adoption and

Safe Families Act in 1997 led many courts to encourage mediation of agreements that would more

quickly achieve permanency for children.

12

While mediation

13

evolved a s the first widely used method for resolving family and child

protection disputes outside of court, additional methods of DR have emerged over the years.

The most prominent forms of family DR now include arbitration,

14

collaborative law,

15

family

group conferencing,

16

mediation, neutral evaluation,

17

and parenting coordination.

18

While

most of these methods have been used for resolving family matters, mediation, and to a lesser

extent family group conferencing and similar methods,

19

have been the most common DR

methods for resolving child protection cases. In addition to these, there are hybrid processes

which typically involve a combination of the above methods. Hybrid processes include parent-

ing coordination, med-arb,

20

and arb-med.

21

While combining methods can be problematic,

especially if the same neutral is used, parties may choose such methods to voluntarily settle

disputes.

While all of these methods arguably fit under the DR umbrella, there are significant differ-

ences between them. These differences can have important implications for the level of protec-

tion that participants can expect with regards to their communications. Given the tremendous

divergence between the types of communication protections provided to various family and

child protection DR methods across states (as well as possibly within states), we will analyze

some of the communication protections provided and offer recommendations for a more consis-

tent and coherent manner to address communication protections in family and child protection

DR processes.

10 FAMILY COURT REVIEW