Confidentiality and Tarasoff - Research Paper Example

Confidentiality and Tarasoff A constantly evolving new practice in the United States, Mediation is a practice in which an unrelated third party with or without the authority to do so, attempts to aid two parties in reaching an amicable solution to a conflict. Given that mediation is a fairly new field which is now gaining widespread popularity due to its cost effective implementation in organizations, many of them have found that integrating a dispute resolution framework requires the evaluation and integration of desirable traits according to their needs. While these traits are primarily chosen for their ability to bring their respective members together, they do not adequately describe the importance of certain key components such as confidentiality. Given their positions these mediators are privy to certain information which allows them to remain impartial while having access to data which will aid them in cases of dispute resolution. The primary goal is, of course, to remain neutral while resolving conflicts and prevent or diminish any chances of future ones. Given the issues which are prevalent throughout these conflicts, safeguards must be put in place which can protect not only the individuals involved in mediation, but also the mediator himself. This is done in consideration to both legal and health concerns[Jef99]. This paper takes a look at the changes which have occurred to this confidentiality clause as a direct result of the Tarasoff case. As mentioned above confidentiality is one of the most important parts of any mediation. The principles in regards to confidentiality involve the mediators agreeing to a duty on the part of the clients to protect their confidence and to follow the prescribed methodology for handling any sensitive information. Given that such explicit standards are attached to the flow of information which goes through these proceedings it can be seen how such a position can have several ramifications especially in regards to the relationship between the clients and their mediator[Jil94]. It is the duty of mediators to shift conflicts towards more constructive ends. So important is this facet that mediators are actually protected from legally revealing the information given within the confines of the mediation unless authorized by that respective party. Such measures are taken to ensure the validity and integrity of the entire process[The84]. If the mediator decides to damage this trust and reveal sensitive information, it is essential that the reasoning behind such a decision have solid legal grounds to avoid any legal action and/or loss of future services. It is equally important that despite these dangers, the mediators weigh the interest of unrelated parties in their efforts to protect the confidentiality of their clients[The84]. The Tarasoff decision and case statutes have been instrumental in developing the guidelines, not only for mediators but also workers in several other fields in regards to breach of confidentiality due to valid concerns[Jil94]. In the Tarasoff case, a patient seen by therapist named Dr. Moore confided to him of his intentions to take the life of an anonymous woman upon her return from holiday. Dr. Moore fearing for the life of this person informed the authorities who arrested his patient and later released him due to lack of evidence. The patient Poddar later on murdered the woman named Tarasoff, whose family brought legal action against Dr. Moore and other parties for failing to adequately warn her of the dangers posed by this man. The arguments of the case brought forwards statutes and the imposition of new laws in several states in the country which were focused on the essential nature of the preservation of confidentiality to the client and when did duty to your fellow man outweigh such an obligation[Jil94]. Given the different settings in which mediation occurs, there will of course be different criteria in which the application of this law occurs. The conditional presence of an actual threat seems to be the focal point which determines whether or not the danger to the victim warrants enough attention to break the trust of one of the parties. Once the threat is established however, it becomes the duty of the mediator to inform the third party and prevent his client or clients from making real the aforementioned threat. If the clients themselves can be encouraged to seek professional help and to keep away from the intended target such an action would be preferable. However, the primary goal in this case is of course the alleviation of harm to the individual in question. It is a matter of law for the mediator to inform the affected party, the police and any other individuals who may come to harm due to their clients actions. The police must be notified if one of the parties is a public figure. However, before seeking such action it may prudent for the mediator to ask for the consent of the client himself. Such consent may offset any violence intended or may even incite it according to the situation[Jil94]. One point that has not been mentioned however that is in all cases of dispute it is essential that mediators remain neutral in order to assert their authority over prevailing proceedings. Given the importance of this neutrality, the danger to the third party must be verifiable before such a position is willingly forfeited[The84]. University officials who have taken up positions as mediators in their respective institutions to protect the rights of their students finds that such neutrality, even when defining the relationship they have with their students, must never infringe on their duty to protect any intended victim. Such actions are essential to avoid legal actions which may occur such as negligence on the part of the university to not disclose such information[Jef99]. If we look at such an action from a risk management perspective it can be seen that application of such actions can only have cost effective and favorable outcomes for both the institution and the person in danger. It must be said though that revealing such information may irreparably damage any future mediations. Due to fear of disclosure on the part of the students, conflict resolution programs may be portrayed as being ineffective and biased[Jef99]. In the case of elementary school counselors they were originally protected from the repercussions of such a decision since the parties in question were considered too young to have involvement in such issues. However, changes within society and other factors have raised such issues and have caused developments which even school counselors are not safe from[Isa97]. Given the dangers certain students can face to themselves or to their teachers, counselors have a duty which is reflected by state and ethical law as well as school regulations. However despite laws which protect health professionals and other workers from legal action against them for violating confidentiality school counselors have no such protection. In fact they have no obligation to take any action if the student makes an unclear threat, even if such a threat constitutes suicide. It can be seen then why the results of a survey conducted shows that these counselors do not base their decisions on legal grounds, but rather follow its personal, moral and curative importance[Isa97]. In the case of family mediators such a breach hinges on the “special relationships” they have with their clients. According to their doctrines such relationships necessitates that their burden to reveal information which makes their client criminally viable begins from the moment they gain such information. Though they do not have any obligation to protect a victim they cannot identify, they do have an obligation to attempt to question the client about the individual’s identity without resorting to coercion[Bar04]. It is essential for dispute resolution professionals to consider their own capabilities when deciphering such threats. Not only do they have a duty to protect the parties’ confidentiality, they also have an unspoken obligation to protect their reputation and ensure standard of care for their clients. Breaching confidentiality hinges on basing their decision on such criteria and potential threats are not applicable as a valid reason. However, aside from the legal implications, it is equally essential to take the ethical and moral standpoint into account when making such a decision. Given the consequences of taking such an action not only on the mediator and client’s trust but also on the reputation of the client and the life of the victim, such actions should not be made lightly without consideration of the potential outcomes. List of References Jef99: , (Sun, 1999), Jil94: , (Kagle & Kopels, 1994), The84: , (The Harvard Law Review Association, 1984), Isa97: , (Isaacs, 1997), Bar04: , (Bartens, 2004), Read More