Law Commons^™

Call For Intellectual Honesty: A Response To The Uniform Mediation Act's Privilege Against Disclosure, A, J. Brad Reich

Journal of Dispute Resolution

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 …