Confidentiality in Arbitration: Beyond the Myth

Abstract:     
Many people assume that arbitration is private and confidential. But is that assumption accurate?

This article is the first to explore that question in the important context of whether arbitration communications can be discovered and admitted into evidence in other legal proceedings - a question that is just beginning to show up in the cases. It first surveys the federal and state statutory and case law, finding that arbitration communications in fact are generally discoverable and admissible. It then considers the normative desirability of discovering and admitting arbitration communications evidence, concluding that the free discovery and admissibility of arbitration communications would frustrate the intent of the Federal Arbitration Act and contradict the case law that has arisen under it, thwart the reasonable expectations of the parties, and give rise to potential abuses of the arbitration process. It finally concludes with a recommendation that the burden of proof be elevated for arbitration communications evidence, permitting their discovery only when the evidence is otherwise unavailable and necessary in a particular case.

Keywords: dispute resolution, arbitration, private, privacy, confidential, confidentiality, admissibility, party expectations, mediation

JEL Classifications: J52, J50, K41

Accepted Paper Series