I will discuss and respond to three potential concerns of creating confidentiality through contractual provision. First, contract provisions are not binding on persons not parties to the contract. As a purely legal principle this is undoubtedly correct, but I will argue that while contract provisions cannot specifically bind non-parties, they can decrease the risk of disclosure of mediation communications to and by non-parties. Second, while it is true that contractual provisions may be voided as violative of public policy, I will argue that courts have generally upheld contractual confidentiality provisions and only voided them when the need for confidentiality was outweighed by a sufficiently compelling interest. Third, contract provisions are not afforded the same level of legal protection as a privilege. I freely admit that this position, again, is generally true. However, it is unclear when, and to what extent, any mediation confidentiality protection, including privilege, will be upheld. In light of this uncertainty, it is more intellectually honest to allow parties to draft contract provisions specifying what type of confidentiality protection they want in a particular mediation, than to allow them to blindly rely on a privilege where the scope of protection is unknown.
J. Brad Reich,
Call for Intellectual Honesty: A Response to the Uniform Mediation Act's Privilege against Disclosure, A,
2001 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2001/iss2/1