Nondisclosure agreements (NDAs) were originally designed to protect trade secrets and proprietary information, but now they have expanded to cover a wide variety of issues, from workplace harassment and discrimination to product liability to commercial settlements. NDAs have become a preferred constraint because they are indefinite / forever; and they are now becoming much broader in scope, frequently constraining parties from even sharing their experiences with family members or friends, work colleagues or professional therapists.
Many mediators and arbitrators have integrated NDAs into their decisions or settlement agreements, but there has been little discussion of the ethical considerations that go along with the use of NDAs in dispute resolution. Is there an interest to be protected in preserving the public’s right to know? In protecting third parties who might be affected by hiding this information? Are vulnerable people being told they must agree to sign an NDA as a precondition for resolution, and then being intimidated into lifelong silence, even when they later feel the need to seek help or counseling?
In this online colloquium we will examine the current use of NDAs in arbitration and mediation and discuss how they can be utilized in line with ADR ethical guidelines. We will discuss the role of legislation and how much party autonomy should govern NDA drafting and use. And we will also attempt to identify best practices that mediators and arbitrators can follow to ensure they balance the interests of their parties with the wider public interest.
Moderators: Prof. Nancy Welsh (Professor of Law, Director of Aggie Dispute Resolution Program, Texas A&M University School of Law) and Prof. Amy Schmitz (Professor of Law, The Ohio State University Moritz College of Law)
Sponsors and Supporters
Texas A&M University School of Law
The Ohio State University Moritz College of Law
Arbitrate.com and Mediate.com
This article first appeared on the Securites Arbitration Alert (SAA) Blog here. FINRA has issued a Regulatory Notice reminding industry parties on the proper use of predispute arbitration agreements (“PDAA”)...By George Friedman
In this episode of The Arbitration Conversation Amy interviews Prof. Anthony Daimsis of the University of Ottawa on the Uber case in Canada and unconscionability applied to the arbitration clause...By Anthony Daimsis, Amy Schmitz
This article first appeared on Global Arbitration News by Baker McKenzie, here. With the emergence of the COVID-19 virus in early 2020, Switzerland along with many other countries introduced extensive...By Valentina Hirsiger, Lukas Frommelt