Dispute Resolution Neutrals’ Ethical Obligation to Support Measured Transparency

Oklahoma Law Review Volume 71 | Number 3 2019 Dispute Resolution Neutrals’ Ethical Obligation to Support Measured Transparency Nancy A. Welsh Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Dispute Resolution and Arbitration Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Nancy A. Welsh, Dispute Resolution Neutrals’ Ethical Obligation to Support Measured Transparency, 71 Okla. L. Rev. 823 (2019), https://digitalcommons.law.ou.edu/olr/vol71/iss3/4 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . DISPUTE RESOLUTION NEUTRALS’ ETHICAL OBLIGATION TO SUPPORT MEASURED TRANSPARENCY NANCY A. WELSH* Table of Contents Introduction ............................................................................................... 824 I. The Precipitating Event: The CFPB’s Arbitration Reporting Proposal .................................................................................................... 827 II. The Experience of Federal and State Courts with the Collection and Publication of Information Regarding Civil Litigation............................. 840 III. The Experience of Quasi-Public and Private Organizations, States, and Users with the Collection and Publication of Information Regarding Dispute Resolution .................................................................................... 844 A. FINRA: Required Publication of Awards and Other Aggregate Data ...................................................................................................... 845 B. ICANN: Required Publication of Awards ....................................... 847 C. International Arbitration: Required and Increased Voluntary Publication of Awards .......................................................................... 848 D. Labor Arbitration: Required and Voluntary Publication of Awards ............................................................................................. 851 E. Consumer Arbitration in California, District of Columbia, Maine, and Maryland: Required Disclosures ................................................... 852 * Professor of Law and Director, Dispute Resolution Program, Texas A&M University School of Law; formerly Professor of Law and William Trickett Faculty Scholar, Penn State University, Dickinson School of Law. This article is based, in part, on comments submitted by the ABA Section of Dispute Resolution to the Consumer Financial Protection Bureau. See Letter from Nancy A. Welsh, Chair-Elect, ABA Section of Dispute Resolution, to Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau (July 29, 2016) (“Section Comments”). Although I served as the primary author of the Section Comments, I thank the following for their significant contributions: Sarah Cole, Benjamin Davis, Michael Green, Jill Gross, Howard Herman, Larry Mills, Andrea Schneider, and Jean Sternlight. I also thank Kristen Blankley, Christopher Honeyman and Judith Resnik for their comments on an earlier draft, Hanna Borsilli (Penn State University, Dickinson Law, J.D. 2018) for her research assistance with the comments submitted by the ABA Section of Dispute Resolution, Malikah Hall and Steffani Fausone (Texas A&M University School of Law) for their research assistance with this article, and the participants in the ABA Dispute Resolution Section’s 2018 Works-in-Progress Conference for their comments on an earlier draft, especially Kathleen Claussen, Deborah Eisenberg and Lydia Nussbaum. Any errors are mine alone. 823 Published by University of Oklahoma College of Law Digital Commons, 2019 824 OKLAHOMA LAW REVIEW [Vol. 71:823 F. Disclosures by Users of Dispute Resolution Services ...................... 859 G. Proposed Transparency Requirements for ODR ............................. 862 IV. Dispute Resolution Ethics and Transparency: Focus on the Model Standards of Conduct for Mediators ......................................................... 864 V. Options for the Recognition of an Ethical Obligation to Support Measured Transparency ............................................................................ 877 A. Revision of the Current Model Standards ....................................... 877 B. The Addition of Commentary to the Current Model Standards....... 879 C. The Creation of Customized Standards for “Imposed Mediation” .. 880 Conclusion ................................................................................................ 882 Introduction In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules regarding the use of mandatory pre-dispute arbitration clauses in consumer contracts for financial goods and services. One of these rules—barring class action waivers in mandatory pre-dispute arbitration clauses—attracted substantial attention. Much less noticed was the CFPB’s second proposed rule (“Arbitration Reporting Proposal”) requiring regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to mandatory pre-dispute arbitration clauses. The Arbitration Reporting Proposal also proposed to make such information public, with appropriate redactions.1 The American Bar Association Section of Dispute Resolution (“the Section”) submitted comments strongly supporting the CFPB’s Arbitration Reporting Proposal. In the course of preparing the Section’s comments, it also became clear to the author of this Article that dispute resolution neutrals and organizations should have an affirmative ethical obligation to 1. There have also been legislative efforts to increase the transparency of mandatory pre-dispute arbitration. See, e.g., H.R. 832, 115th Cong. (1st Sess. 2017) (also known as the “Arbitration Transparency Act”) (proposing to amend section 2 of the Federal Arbitration Act to require arbitrations between financial institutions and consumers to be open to the public); S. 647, 115th Cong. (1st Sess. 2017) (known as the “Mandatory Arbitration Transparency Act”) (proposing to amend Title 9 to ban pre-dispute agreements that provide for arbitration of employment, consumer, or civil rights if the agreements bar parties from contacting state or federal agencies regarding unlawful conduct or other issues of public policy or public concern, deeming such agreements to be “unfair or deceptive act[s] or practices” under the Federal Trade Commission Act, instructing the FTC to issue new rules and punish violators, and creating a private right of action for aggrieved consumers). https://digitalcommons.law.ou.edu/olr/vol71/iss3/4 2019] OBLIGATION TO SUPPORT MEASURED TRANSPARENCY 825 support responsible—“measured”—trans (...truncated)