Alternative Dispute Resolution Often Chosen to Bar Reporters
Reuben, Richard C., Investigative Reporters and Editors, Inc. The IRE Journal
When the two sides involved in a civil dispute try to resolve their differences before a court trial, they may enter what is known as Alternative Dispute Resolution (ADR). Different forms of ADR exist, including mediation, non-mediated settlements, arbitration, or trials before a judge or jury that have nonbinding verdicts.
However, these proceedings are not open to the media, which is exactly why many people choose them, says Richard C. Reuben, an associate professor of law and adjunct professor of journalism at the University of Missouri in Columbia.
"ADR provides a forum in which parties can discuss their differences in a frank and candid manner without worrying about someone else hearing it. But for a journalist, what sounds like 'confidential' on one side sounds like 'secret' on the other," Reuben says.
Reuben made his comments to The Reporters Committee For Freedom of the Press. The following is an excerpt from that interview, reprinted with permission:
Why is a court-ordered settlement conference not considered to be a court proceeding?
Because there's a lot of information, ideas and interests that are discussed that may or may not find their way into the final settlement agreement, and it's the agreement itself that the parties are asking the courts to enforce.
Businesses will often agree in a contract that, if a dispute arises, they will go to private arbitration rather than file a complaint in court. If arbitration is chosen in this manner, is it public?
One of the standards the U.S. Supreme Court has used over the years to determine whether private conduct can be viewed as public is the "entanglement rationale." Under this rationale, where the public and private conduct are sufficiently entangled to the point that it would be fair to attribute that private conduct to the government, the courts will do so.
With regard to arbitration; there are laws that allow for enforceability of arbitration agreements and awards. Under the Federal Arbitration Act and similar state laws, courts may decide whether there is an agreement to arbitrate and if there is one the court will enforce that agreement. When the arbitrator decides the case, it might go back to the court for purposes of enforcement, and the court has continuing jurisdiction over the case while it is privately arbitrated. When you look at the case law on entanglement, this is actually a higher degree of entanglement than has been found in most of the cases in which the courts actually found entanglement. …