OHIO STATE JOURNAL ON DISPUTE RESOLUTION (Vol. 27:2 2012) evidence prepared for the sole and limited purpose of mediation. 33 Confidentiality in election dispute mediation is similarly fraught. Should election dispute mediations be conducted behind closed doors? Unlike disputes between private parties, the public might demand to know-and indeed has the right to know-how election disputes are resolved for the very reason that it is the public which must sanction the outcome. Secrecy, even a hint of the proverbial smoke--filled room--can cast great doubt on the legitimacy of an electoral outcome. 34 Another reason parties are encouraged to try mediation is selfdetermination. Self-determination is often cited as the predominant benefit of and central value in mediation because it ensures that outcomes are responsive to the parties' interests.3 5 There is no way to know how a judge will decide a case, but mediation affords parties the opportunity to control the outcome of their dispute. 36 This quality can be very attractive to parties, 33 ld. at 271. See generally Sarah Williams, Confidentiality in Mediation: Is It Encouraging Good Mediation or Bad Conduct? Rojas v. Superior Court of Los Angeles County, 2005 J. DISP. RESOL. 209 (2005). For an interesting discussion of how the Uniform Mediation Act's confidentiality provisions managed the problem of public health and safety versus confidentiality, see Philip J. Harter, The Uniform Mediation Act: An Essential Framework for Self-Determination, 22 N. ILL. U. L. REV. 251, 258 (2002) ("[What if] the mediator ... learn[s] that a barrel of a highly toxic chemical lies just beneath the local playground or that some product poses a very real danger to potential users[?) Or, it may be that one of the participants is so upset with what happened that s/he plans to seriously harm someone. In these instances the strong presumption of confidentiality-which is essential for mediation to work successfully-should be overridden and the facts revealed, but only to the extent necessary to address the concern. The question is: who decides and by what standards."(citation omitted)). 34 One way around mediation confidentiality issues is to make election mediation sessions open to the public. See Uniform Mediation Act, 710 ILL. COMP. STAT. ANN. 35/1 § 6(a)(2) (LexisNexis 20ll). Indeed, in some instances a state's open meetings laws might require access. But this option risks forfeiting the significant benefits confidentiality lends to mediation, including encouraging candor and uninhibited option generation. 35 Kimberlee Kovach, "Mediation," THE HANDBOOK OF DISPUTE RESOLUTION 305 (Michael L. Moffitt & Robert C. Bordone, eds., 2005). 36 See, e.g., Jacqueline Nolan-Haley, Self-Determination in International Mediation: Some Preliminary Reflections, 7 CARDOZO J. CONFLICT RESOL. 277, 277 (2006) (noting that "the right of self-determination allows parties to participate in decisionmaking and voluntarily determine the outcome of their disputes. This understanding of selfdetermination is rooted in the philosophical principle of personal autonomy and is expressed through the legal doctrine of informed consent. The simple version of the normative story states that those who are affected by a dispute should voluntarily consent to the outcome of that dispute. In short, "party" self-determination in mediation gives ownership of the conflict to the disputants."). 332 HeinOnline -- 27 Ohio St. J. on Disp. Resol. 332 2012