Confidentiality's Constitutionality: The Incursion on Judicial Powers to Regulate Party Conduct in Court-Connected Mediation

52 Pages Posted: 3 Jul 2014 Last revised: 28 Mar 2017

See all articles by Maureen A. Weston

Maureen A. Weston

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2003


This Article explores the interplay between mediation confidentiality legislation and judicial powers to regulate participant conduct in the pretrial process. Part II describes the role of the court in monitoring parties' conduct in distinct settlement-related processes, such as private settlement negotiations, judicial settlement conferences, court-connected arbitration, and court-connected mediation, as well as the corresponding but varied confidentiality protection accorded these processes. Part III examines judicial decisions analyzing the tension between mediation confidentiality and judicial power to monitor and sanction misconduct in a settlement or court-connected mediation setting, specifically comparing the approach used by the California Supreme Court in Foxgate Homeowners’ Ass’n, Inc. v. Bramalea California, Inc. with that of other courts, which have relied upon inherent powers to sanction parties for court-connected ADR misconduct. Part IV explores this tension from a constitutional perspective, examining the respective powers of the judiciary to control the litigation process and of the legislature to promulgate policy that impacts the judiciary. This analysis concludes that separation of powers principles implicitly restrict enforcement of broad confidentiality statutes to the extent these provisions materially impair judicial power to sanction participant conduct in court-connected dispute resolution proceedings. Thus, confidentiality legislation is implicitly, but should be expressly, “qualified” to accommodate the judicial power to enforce its orders and conduct its judicial duties. Notwithstanding this qualification, a court can minimize deleterious effects on confidentiality by adopting appropriate safeguards to shield information disclosed within mediation from unnecessary public revealment. Legislation that qualifies the scope of confidentiality to exclude protection for conduct that is sanctionable, illegal, or in violation of court orders or professional ethics codes, appropriately balances the need for respecting the judiciary's role with the legislature's concern for substantive confidentiality in court-connected dispute resolution processes.

Keywords: dispute resolution, ADR, judicial settlement, judicial authority, judicial power, court-connected dispute resolution, mediation, arbitration, confidentiality, mediation confidentiality, separation of powers

Suggested Citation

Weston, Maureen A, Confidentiality's Constitutionality: The Incursion on Judicial Powers to Regulate Party Conduct in Court-Connected Mediation (2003). Harvard Negotiation Law Review, Vol. 8, No. 29, 2003, Available at SSRN:

Maureen A Weston (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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