Alternative dispute resolution has many advantages over traditional litigation, including reduced costs, expedited timelines and streamlined processes. However, one of the oft-touted reasons parties choose a form of alternative dispute resolution is to prevent the underlying dispute, negotiations, and potential the settlement from being exposed to the public eye. While it is reasonable to assume that mediation and arbitration are in large part confidential, it would be wholly unreasonable to expect unfettered confidentiality across the board. Rather, it is incumbent upon the participants to take appropriate steps to create and enhance available protections, as well as to be aware of existing limitations or potential risks associated with these processes. Absent precautions, a misguided presumption of confidentiality may result in missed opportunities to provide some additional protections along the way. Moreover, failure to understand the true limitations of confidentiality can lead to misunderstandings between counselors and their clients, as well as set unreasonable client expectations.

Between the two traditional forums of dispute resolution, i.e., arbitration and mediation, there are some variations in what is automatically accepted or recognized as confidential and which form of dispute resolution may have a better chance of being maintained as confidential throughout the entirety of the process. Each of these processes will be addressed separately herein.