The very air is replete with news of computer hacking, some massive in scope sending everyone to check their account balances, and other invasions equally upsetting to those whose intimate lives are exposed. It’s impossible not to be ever more aware that our personal zone of privacy may be compromised. I resist becoming hyper-vigilant, but know there are times to be wary. And one of those times is when a personal relationship is crumbling.
The story: My mediation client, John, had been betrayed by his wife. Yet, he sat before me smiling, eager to tell me that he now knew that Jan, his wife, had bought a plane ticket and would soon travel to Texas to meet her childhood sweetheart. Had she told him this? No. But he knew.
John worked as an I.T. specialist. After Jan moved out of the family residence, he’d obtained software originally designed for parents to keep tabs on their children’s internet explorations, and used it to surreptitiously tap (hack) into her email. Upon making this disclosure, he quickly reminded me that he was revealing it to me in confidence, as promised by our mediation contract. It put me on high alert.
I said: You’d best consult with your attorney, John. You may be committing a crime.
His smile faded, and I knew he would follow my advice.
This seventeen-year marriage had unraveled. Although John earned far more that Jan did as a preschool teacher, he thought he now had found the ammunition he needed to avoid paying alimony. He would soon learn that his premise was flawed, but more importantly at that moment, the way he’d been collecting his information was a time bomb, for him, and possibly for me. In some circumstances, it is also a crime not to report a crime.
When John returned for our next session, he asked to meet with me privately and soberly divulged that indeed, according to his lawyer, it could well be that his past actions were criminal. Chastened, he assured me that his sleuthing was over, that he would no longer read Jan’s email. But how could I be sure? He might in this way even invade the privileged relationship between his wife and her attorney, if email was how they were communicating, and likely it was.
Perhaps I should have taken more time to think things through, but on the spot I told John that unless he disclosed his breach of her email account to Jan in my presence, so she could take protective steps, mediation would end.
His immediate response: No way.
He feared his now estranged and angry wife would seek revenge by reporting him, or use the threat of disclosure as a bargaining tool. These were reasonable concerns and I could not mandate his confession. So, I decided to terminate our mediation sessions.
With Jan back in the room, I told them both that I didn’t think their support issues would best be addressed in mediation. Jan was compliant. I assured them I would call both of their attorneys and describe the agreements they had already made for the design of their parenting plan, and ask their counsel to manage settlement discussions regarding support.
John’s attorney already knew the score about what had taken place. Jan’s did not, and I was not free to be explicit with him. When we spoke the next day, I decided to weave into our conversation that I’d recently spoken with an attorney who urged all of her divorcing clients to change their email address and password and that I thought this a reasonable precaution. Silently I hoped that he would advise Jan to do the same. I needed to walk a fine line, wanting to say just enough to protect Jan’s privacy, while upholding my contractual and legal obligation to maintain John’s confidentiality.
Far from a perfect solution.
For those of us who’ve picked up computer skills only as-needed, but have no advanced literacy in this new language which daily becomes more essential to the business of life, legal and ethical challenges emerge like the tips of icebergs in uncharted waters. It is chilling.