The Ethics of NDAs in Mediation and Arbitration

Online Colloquium

Tuesday, February 15, 2022
12:00 - 1:30 pm Pacific / 1:00 - 2:30 pm Mountain / 2:00 - 3:30 pm Central / 3:00 - 4:30 pm Eastern

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.

  • Colin Rule, CEO, and; Practitioner in Residence, Texas A&M University School of Law
  • Nancy A. Welsh, Frank W. Elliott, Jr. University Professor, Professor of Law and Director, Aggie Dispute Resolution Program
  • Amy Schmitz, John Deaver Drinko-Baker & Hostetler Chair in Law, The Ohio State University Moritz College of Law
  • Dr. Julie Macfarlane, University Professor and Professor of Law (Emerita) at the University of Windsor; Co-Founder, Can’t Buy My Silence 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