You Promised You Wouldn't Tell: Modifying Arbitration Confidentiality Agreements to Allow Third-Party Access to Prior Arbitration Documents

Authors

Gotham Holdings
Heath Grades

Abstract

To facilitate the speed, cost-effectiveness, and casual atmosphere of arbitration, it has long been thought that parties must trade in the usual features of the courts, such as precedent, appellate review, and certain evidentiary rules. With the increasing use of arbitration, many parties have begun to demand that some of the comforts that have long accompanied litigation be merged with the benefits of arbitration. Courts have, for the most part, denied such demands. Nevertheless, the Seventh Circuit in Gotham Holdings allowed such a demand by ruling that third parties must have the opportunity to obtain prior arbitration awards and use them as evidence of precedent in a subsequent arbitral or judicial proceeding. Any concern that arbitration will lose its appeal, as such a procedure will drive up the cost for arbitration and bring arbitration closer to being like litigation, is misguided. Providing information about prior arbitral awards and related documents offers precedential value and will only lead to a faster and more cost-effective process. Similarly, giving parties the opportunity to offer evidence and testimony other than their own voice will allow them to provide better support for their claims and permit arbitration to become even more of a "necessary legal remedy."

Recommended Citation

Gotham Holdings and Heath Grades, You Promised You Wouldn't Tell: Modifying Arbitration Confidentiality Agreements to Allow Third-Party Access to Prior Arbitration Documents, 2010 J. Disp. Resol. (2010)
Available at: https://scholarship.law.missouri.edu/jdr/vol2010/iss2/8