So, it’s hard for me to have a case and be concerned about possible consequences of working with it. Recently, I received a case that involves a vehicle and loss of life. The kicker is that the victim’s survivors have threatened a wrongful death civil suit. Unfortunately, this could have some negative consequences if we move ahead with even the preparatory steps of the restorative process.
With each meeting with a client, we read and sign a confidentiality agreement. It states that neither the facilitator nor client will share identifying content from the case. It’s a way of creating a safe place for speaking from the heart. The confidentiality agreement also says that the files will not be used in any court proceedings whatsoever.
Of course, there are limits to confidentiality and those are disclosed so that everyone knows and can take that into consideration. The only problem is that there isn't statutory protection for restorative justice facilitators in my state. While this does exist for mediation, I've been told that it doesn't apply to restorative conferencing.
So, I come back to my case where the civil suit has been threatened. One fear is that anything the offender said in the conferencing process could show up in a civil suit. I've had apology letters from a restorative conference used this way. But, I've also been told that by meeting with the offender to explain the process and offer him an opportunity to participate, I could be opening myself to being called to testify in the civil suit. To do so would undermine the programme as no one would have the guarantee of confidentiality. At the same time, I could face legal consequences for not doing so.
I've gotten some advice from people who have a much better understanding of the law than I do. But, I still don’t know what to do. At this point, it is all hypothetical as the suit has not been files although there are a few months left for doing so. My inclination is to meet with the parties and see where they are and offer the process. But, I still have a fear of doing so.