In her article, Public Courts versus Private Justice: It's Time to Let Some Sun Shine in on Alternative Dispute Resolution, Professor Laurie Doré explores the divergent attitudes toward confidentiality in litigation and confidentiality in alternative dispute resolution. In adjudicating even seemingly private disputes, a court balances the legitimate need for confidentiality against any countervailing public interest in disclosure. A strong presumption of public access attaches to judicial records and proceedings and good cause must support any protective, sealing, or confidentiality order of a court. Today, however, an increasing number of disputes that would otherwise be litigated before a judge in open court are being siphoned out of the public court system into the opaque and private environment of ADR.
After examining and contrasting open courts with closed ADR, Professor Dor6 asserts that the current dichotomy between litigation and ADR confidentiality may not be completely justified. The growth of court-sponsored ADR and the diversion of employment, consumer, and many other disputes from litigation into arbitration and mediation have blurred the distinction between public and private dispute resolution. Professor Doré thus proposes a more unified approach to confidentiality in dispute resolution that calls for correspondingly greater transparency of ADR. She suggests greater judicial and legislative regulation of ADR confidentiality, particularly for claims that are grounded in public policy or are otherwise of legitimate public interest. Professor Doré thus proposes limited access to information concerning the arbitration of these cases, such as the existence of the arbitration, the identities of the parties, and the publication of the award and its reasoning. Similarly, she questions the absolute nature of some mediation privileges and argues instead for a qualified privilege that would permit limited discovery of mediation-related information when justified by sufficiently compelling cause. Exposing alternative dispute resolution to such "sunshine" would disclose information about repeat players, facilitate accountability and deterrence, and encourage public confidence in ADR.
Laurie K. Dore,
Public Courts versus Private Justice: It's Time to Let Some Sun Shine in on Alternative Dispute Resolution,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss2/8