Nothing to Hide: How to Make and Evaluate Disclosures in ADR
Although the roles of arbitrators and mediators are different, neutrals in either capacity need to make fulsome disclosures so their impartiality can be adequately assessed.
August 13, 2024 at 11:41 AM
9 minute read
Whether you are an advocate representing clients in alternate dispute resolution (ADR) or serving as a neutral arbitrator or mediator, it is critical to understand the disclosure rules. All stakeholders in the ADR process want to assure that parties participating have the requisite information to have confidence in the fairness of the process. Although the roles of arbitrators and mediators are different, neutrals in either capacity need to make fulsome disclosures so their impartiality can be adequately assessed. As arbitrators render binding decisions, they and the parties want to avoid challenges to an award due to disclosure deficiencies. Although mediators generally do not issue binding determinations, but try to facilitate the parties' negotiations, they too want the decisionmakers and their advisers to trust that the conciliatory efforts are not influenced by concealed relationships. On the flip side, counsel for the parties want to provide sufficient information about parties, witnesses, experts and counsel themselves so potential neutrals can conduct a meaningful inquiry for disclosure purposes. They also want to conduct a meaningful assessment of potential neutrals to identify potential or perceived conflicts that could jeopardize the process or any resolution derived from engaging in ADR.
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