In the end, the Drafters ultimately chose to draw a clear line, and to follow the general practice in the states of leaving the disclosure of mediation communications outside of proceedings to the good judgment of the parties to determine in light of the unique characteristics and circumstances of their dispute.

Finally, special note should be made of the language "or provided by other law or rule of this State." This language has two critical effects. First, it makes clear that the Act does not preempt current court rules or statutes that may impose a duty of confidentiality outside of proceedings. See Texas Civ. Prac. & Rem. Section 154.073 (a) (arguably imposing a duty of non-disclosure outside the context of proceedings). Second, the language "or provided by other law or rule of this State" also puts parties on notice that the parties' capacity to contract for this aspect of confidentiality, while broad, is subject to the limitations of existing State law. This recognizes the important policy choices that the State already has made through its various mechanisms of law.

For example, such a contract would be subject to the rule in some states that would permit or require a mediator to reveal information if there is a present and substantial threat that a person will suffer death or substantial bodily harm if the mediator fails to take action necessary to eliminate the treat. See, e.g., Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976) (en banc) (permitting action against psychotherapist who knows of a patient's dangerousness and fails to warn the potential victim). The mediator in such a case may first wish to secure a determination by a court, in camera, that the facts of the particular case justify or indeed dictate divulging the information to prevent reasonably certain death or substantial bodily harm. See, for example, ABA Rule 1.6(b)(1) and