In examining the possible effects of the institutionalization of mediation, the authors present case law on confidentiality, good faith participation in mediation, and the enforcement of agreements. In dealing with these issues, the courts have generally been sensitive to mediation's core values (namely party self-determination, voluntariness, confidentiality, and mediator impartiality); however, conflicts between these values and the court's interest in encouraging settlement and ensuring fairness will continue to arise. To deal with these conflicts, the courts should create a framework for deciding such issues as enforcement of mediated agreements and good faith participation that recognizes "mediation's unique character and attributes."

The author is a member of the RSI Board of Directors.