Confidentiality of Texas Mediations: Ruminations on Some Thorny Problems

Abstract

Earlier writings in the literature have explored aspects of the Texas ADR Act's confidentiality sections. This article, by way of contrast, will explore some of the issues developing in the emerging case law. In addition, this article will comment on the different approach taken to confidentiality in the draft Uniform Mediation Act. In particular, this article will examine problem areas such as disclosures of mediation communications outside of legal proceedings, the use of mediation communications as part of contractual defenses or claims, the seeking of disclosure of mediation communications in tangential criminal proceedings, the confidentiality aspects of settlement agreements, and disclosures relating to alleged bad faith by one of the parties at a mediation session. This article will address these topics by posing a series of hypothetical situations that are largely based on either reported case decisions or actual occurrences that have been related to the author.

JEL Classification: K19