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Dealing with the Press During an Arbitration or Mediation - What are your thoughts?

What, if anything can an arbitrator/mediator do if he or she sees information in the press regarding an ongoing hearing?

Please provide your thoughts/comments below.

Comments (13)

Tony DiLeo:

Advise the parties and bring it to their attention and the AAA.

TONY

Deanne Wilson:


First--Stop reading immediately! Second, if in fact, the arbitrator did read something of substance, it should be disclosed to the parties and the AAA, along with the arbitrator's belief as to whether the information would bias him or her.

Chances are that if there is a news report, its source is one of the parties, and the other party is likely to already know about it. Since the arbitrator isn't likely to know for sure who the leaker was, there's not a whole lot that can be done. Even if one side does admit to being the source, what penalty can be assessed? While the procedures are supposed to be private, there's no penalty for violating that, so far as I know.

An arbitrator who sees information in the press regarding an ongoing Hearing should call an immediate conference with the parties and express one's strong displeasure with such an occurrence and urge the parties to stipulate to a confidentiality Order.

A mediator who sees such information in the press should use the event to highlight to the parties the advantage of a mediated settlement.

A mediator and arbitrator must address and work with what the parties bring into the sessions, and not interject any extrinsic material. Furthermore, neither party is able to address the press reporting, which is often presented from a particular point of view, and not neutral factual statements. News reports must be entirely disregarded by arbitrators and mediators.

It's not the neutral's concern unless, perhaps, the press reports reveal a violation of a protective order.

I generally concur with Mr. Skulnick. Reacting to third-party comments is not part of a neutral's job description.

Robert llE. Barras:

Disclosure is key. In AAA cases disclose directly to case administrator land allow AAA to inform parties

Jose W Cartagena:

I agree with Mr. Skulnik. An arbitrator is not an uninformed judge or a juror. The arbitrator sits because of the confidence deposited in him by the parties that he has the particular expertise in the subject matter before him to discern what is good evidence and what is not that is brought to him by the parties during the hearings. Whatever happens outside the hearings is not his concern. Let's not "over-legalize" arbitration.

Unless the parties agreement to arbitrate specially allows the matter to be discussed publicly, discussing the dispute with the media would, of course, violate the AAA rule of confidentiality. I would remind the parties of that if one of the parties threatened to discuss the dispute publicly.

Barry Evenchick:

Unless there is some agreement ( oral or written) among the parties and the arbitrator that the proceedings will be confidential, I think that nothing can or should be done. If however the proceedings were supposed to be confidential, the press publication should be discussed with the parties and a decision reached as to whether there is any possible remedy.

Dani Schwartz:

In addition to the sage advice already offered, it also may be useful to advise or remind counsel for the parties that the arbitrator(s) will not be swayed by any media reports - not by the tone, scope, or nature of any reports.

Micalyn S. Harris:

Interesting that no one has suggested that it may depend on what the information is or what kinds of parties are involved. I can imagine a case involving public corporations where the disclosure of a conflict and the fact that such conflicts are, by contract, resolved through arbitration, is required by the federal securities laws. In such cases, if that disclosure is picked up in the press and the press release reports what the 8-K reported, a disclosure along the lines of "I see the press picked up your 8-K" seems optional. If there's a lot of discussion in the press about evidence presented in a confidential setting - hearing or even the discovery phase - that needs to be dealt with differently, probably in a conference call, both to confirm the arbitrator's not being swayed by press reports and to find out how the parties feel about the situation so a course of action can be tailored appropriately.

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This page contains a single entry from the blog posted on January 6, 2019 2:51 PM.

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