Much has been written about confidentiality in ADR (Kovach 2005; Chatterjee and Lefcovitch 2008; Shiravi and Javad 2017). It is the bedrock of successful, informal problem-solving and fosters open discussion. Confidentiality is critical in JDR for a number of reasons, some of which we discovered in our research cases. In The Falling Rocks Case, we found that both attorneys and parties rely on confidentiality going into a JDR: ”.… Confidentiality, always a priority for the attorneys, was of primary importance for the insurance company's counsel: if the case went to trial, the claim would be publicly disclosed and it would likely provide a potential benchmark for future insurance claims. That scenario would not be in their best interest, so their counsels had a strong incentive to settle.”

Confidentiality in JDR eliminates precedents and that impacts judges, as well. Judges routinely rely on precedents in applying the law to their decisions and even finding the goalposts for assistance in JDRs. Wearing their settlement hat as a JDR judge, they may not seek advice or talk to anyone—including their colleagues—because they could later serve as trial judges if the case does not settle at the JDR. This isolation is important for the preservation of privacy reasons discussed in this chapter and referenced in The Motor Vehicle Case: “Confidentiality was a significant factor in this case. It meant that the justice could not be as transparent as she might have liked when strategizing with other justices about the best way to approach this JDR. Nonetheless, she preserved the conditions necessary for the parties to move forward with a fair trial and impartial justice.”

Although confidentiality brings challenges—including the constriction of legal precedent—it serves a vital role in helping parties come to resolution. Again, referring to The Motor Vehicle Accident Case, we identify the obstacles to confidentiality but more importantly, we learn why it brings about settlement opportunities when judges and parties are free from the encumbrances of precedent: