The Ethics of NDAs in Mediation and Arbitration – An Online Colloquium – New AI Podcast

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Summary:

This 2022 online colloquium discusses the ethics of Non-Disclosure Agreements (NDAs) in workplace mediation and arbitration. The discussion features legal experts and academics who present varying perspectives on NDAs, highlighting concerns about power imbalances and the silencing of victims, particularly in sexual harassment and assault cases. Presenters also address the use of non-disparagement clauses and explore potential legal reforms aiming to limit or ban NDAs in certain contexts. The colloquium emphasizes the importance of mediator education and ethical considerations when negotiating NDAs, particularly ensuring informed consent and addressing potential power imbalances. Finally, the speakers offer key takeaways for mediators and lawyers involved in such cases.

Listen to the AI podcast of this Colloquium:

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 our online colloquium, we examined the current use of NDAs in arbitration and mediation and discuss how they can be utilized in line with ADR ethical guidelines.  We discussed the role of legislation and how much party autonomy should govern NDA drafting and use.  And we also identified some of the best practices that mediators and arbitrators can follow to ensure they balance the interests of their parties with the wider public interest.

Panelists:

• Dr. Julie Macfarlane, University Professor and Professor of Law (Emerita) at the University of Windsor; Co-Founder, Can’t Buy My Silence a global campaign to limit the use of NDAs
• Professor Brian Farkas, Cardozo Law School
• Jody L. Newman, Employment lawyer/Mediator, of Counsel, Boston Law Collaborative

Moderators:

• Prof. Nancy Welsh (Professor of Law, Director of Aggie Dispute Resolution Program, Texas A&M University School of Law)
• 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