Are agreements that come out of ADR processes confidential?
Sometimes. There is a great deal of confidentiality associated with certain ADR processes — especially with mediations or other processes seeking settlement in the context of contested cases or lawsuits. Communications during or relating to the ADR proceeding are confidential. Agreements reached between private parties are often confidential unless the parties agree otherwise. However, when a governmental entity is involved, there are open government considerations. The Governmental Dispute Resolution Act provides that when a state agency signs a written agreement, that agreement is an open record or confidential “in accordance with other law.”(1) In other words, the Act itself does not provide any independent basis for making such an agreement confidential.
