ETHICS

For non court annexed arbitration, I adhere to the American Arbitration Association Code of Ethics. This code emphasizes neutrality, disclosure and avoidance of the appearance of lack of neutrality or other impropriety. The Code of Ethics provides for confidentiality.

For court annexed arbitration, I adhere to the Oregon Code of Judicial Ethics, as required by the provisions of the Uniform Trial Court Rules governing court annexed arbitration.

IS ARBITRATION CONFIDENTIAL?

Many people assume that arbitration is confidential. Is it? The answer is: All things are relative.

Compare it to the courts

Consider this: Court proceedings are almost always public. Court rooms are open, but the reality is that in most courtrooms, spectators are rare. Most court proceedings in Oregon are recorded, but obtaining a copy of the recording is difficult unless payment was made prior to the hearing. Once the words are spoken, unless that pre-payment was made and unless the recording is transcribed at great expense, they will never be heard again. Court annexed arbitrations are also public but finding out when and where they will occur is difficult. The possibility of spectators is just that: a possibility. This writer has never heard of the public attending a court annexed arbitration unless one of the parties invited the spectator. Court annexed arbitrations are not routinely recorded or transcribed, unless one of the parties so desires.

Court papers are generally public records and with e-filings already here in the federal courts for a modest subscription and coming in the state courts, paper filings with the court must be assumed not to be confidential. However, in court annexed arbitration many filings made to the arbitrator are not filed with the court, so to some degree proceedings in court annexed arbitration are more private than proceedings in court.

Private arbitration

Outside the government, most things confidential are that way because people in the know want them to be confidential. So for arbitration. Codes of arbitrator conduct generally require confidentiality, and it is doubtful that any respectable arbitrator would tell anyone about what happened in an arbitration - in such a way that the identity of the parties would be disclosed - without both a subpoena and allowing the parties to the arbitration to intervene and object. Arbitration agreements often include requirements for confidentiality. Private arbitration hearings are not public. Papers filed with the arbitrator are not public, although if the award must be enforced (or questioned) in court, the award can become public. Many disputants do not want publicity.

On the other hand, by the law of California, arbitrators conducting California consumer arbitrations (which I do not do) must disclose the names of all business and corporate parties to arbitrations conducted in the previous five years, as well as the outcomes.

But, is there any law that the secrets of arbitration cannot be disclosed? Even with a confidentiality agreement and a private code of ethics providing for confidentiality, it is likely that people in the know could be compelled (by subpoena) to testify about what happened in an arbitration, if the testimony was relevant to some issue in a later case. Most arbitrators worth their salt would, if subpoenaed, both object and give notice to the parties involved so they could object, but at the end of the day, whether the testimony would be required would be up to a judge.

As a practical matter, arbitration is more confidential in fact, but not necessarily more confidential in law, than a court case, or for that matter, a private conversation held anywhere.