Mandatory arbitration is usually criticized, or defended, from the perspective of the parties involved in the dispute itself but an interesting point has been raised by a recent New York Times article covering Gretchen Carlson’s lawsuit against Roger Ailes of Fox News. In Ms. Carlson’s case, her arbitration agreement includes a strict confidentiality clause that prevents disclosure of “all filings, evidence and testimony connected with the arbitration, and all relevant allegations and events leading up to the arbitration[.]”
This contractually-mandated secrecy is another way in which arbitration undermines the American public justice system. It is easy for people working in the legal industry, particularly advocates, to overlook the fact that litigation serves a purpose beyond resolving disputes between the immediate parties involved. With few exceptions, litigation is intended to be open to the public because the public has an important interest in criminal and civil accountability. A transparent and public justice system is a fundamental part of our society.
The New York Times article highlights another way in which compulsory arbitration is antithetical to the American justice system—arbitration shrouded in secrecy takes public accountability out of the equation.
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