Confidentiality vs. Transparency in Arbitration: Striking the Right Balance

One of arbitration’s greatest strengths is confidentiality. Yet in some cases, that very privacy can raise questions about fairness, public interest, and accountability. Understanding when to protect sensitive details—and when limited transparency may serve justice—is key to responsible arbitration practice.

Here’s how I approach the balance:



1. Confidentiality as a Default Strength

Arbitration is often chosen because it allows parties to resolve disputes outside of the public courtroom. This protects proprietary information, trade secrets, reputations, and ongoing business relationships. For most commercial disputes, confidentiality allows for a more candid and efficient resolution.

2. Transparency When Public Interest Is at Stake

In matters involving regulatory issues, significant public impact, or precedent-setting questions, transparency may enhance legitimacy. While parties may still choose to keep proceedings private, issuing redacted or summarized rulings can help preserve public confidence—particularly when enforcement requires court confirmation.

3. Party Autonomy Is Paramount

Unlike court litigation, arbitration allows parties to define the scope of privacy through their agreement or institutional rules. As a neutral, I encourage parties and counsel to address confidentiality early, ensuring there’s clarity on what will remain private—and why.

4. Best Practices for Balancing Both

• Draft detailed confidentiality clauses in the arbitration agreement.
• Consider a confidentiality order when handling sensitive evidence.
• Discuss with parties whether any portion of the award or record may be made public.
• Where transparency is desired, create mechanisms for controlled disclosure without compromising sensitive data.

Arbitration doesn't require an all-or-nothing approach. With thoughtful planning, it’s possible to maintain confidentiality while allowing for transparency where it serves justice and the greater good. The key is intention, clarity, and balance.