An interview with Richard C. Reuben

Richard C. Reuben is an associate professor of law and adjunct associate professor of journalism at the University of Missouri-Columbia and the editor of Dispute Resolution Magazine, published by the American Bar Association section on dispute resolution. He has worked as a journalist at the Atlanta Constitution and the Daily Journal Corp. in California. He is also the former associate director of Stanford Center on Conflict and Negotiation and a former fellow at Harvard Negotiation Research Project. He received his J.S.D. from Stanford Law School and earned an undergraduate degree in journalism from Georgia State University. For his doctoral dissertation, he wrote about how Alternative Dispute Resolution (ADR) could be considered a "state action" for constitutional purposes.

Why do courts generally deny access to ADR proceedings?

Access to ADR proceedings is often denied because confidentiality is typically an important reason why people use ADR, particularly mediation. One of the advantages of the mediation process is to get away from media scrutiny and talk about the parties' underlying interests at stake in the lawsuit. 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.

Why do some courts allow access to settlement agreements but not to the conferences?

The reason is because the final agreements are often public records. For example, an arbitration agreement affirmed by a court is a public record, and it is appropriate for reporters to look at those records. Similarly, a settlement agreement adopted as a court record is fair game.

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.

You wrote about ways in which ADR could be interpreted as being state action. What is state action, and why is the concept important?

State action is the basic requirement for the application of the Bill of Rights to any given situation. The constitution is fundamentally a limitation on the power of government to inject itself into private life and affairs. The state action doctrine is the test used to determine whether the actor is a government actor, and that determines whether a constitutional guarantee, such as free speech, applies. When there is state action those protections do apply, as a general matter, and when the government is not participating in the alleged offensive conduct, then the constitution does not apply. State and federal statutes may apply, but the constitution doesn't apply. Thus, in the context of ADR, constitutional protections may be applied if the ADR process constitutes a state action, but constitutional protections would not apply if it were not state action.

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?

This is where the state action doctrine kicks in. 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. Thus, the structure of the law that generally permits the enforceability of those private agreements to arbitrate creates the type of entanglement that gives rise to the application of the state action doctrine. Because of the partnership between public and private actors, those private arbiters should be considered public actors for constitutional purposes.

Is there the same type of entanglement where parties go to arbitration and don't need the court to order or enforce the agreement?

It would still be covered by the Federal Arbitration Act, even if the court doesn't enforce it.

Why do parties think that private resolution can be better than public resolution?

When we talk about public resolution, we are talking about trial and courts are constrained in the way they can resolve disputes. They are constrained by rules of procedure, rules of evidence and rules of law. One of the benefits of ADR is that it lets the parties work out the dispute in the way that best satisfies their needs, and it may be in a way that the court wouldn't have jurisdiction or authority to do.

Should public access to ADR proceedings depend on whether the litigants are public or private entities?

In some respects, it does matter. In most states, where one of the parties is a government entity subject to open records and meetings laws, press access may be granted. On the other hand, access to disputes involving private parties is often determined by the parties themselves.

Should access depend on the type of ADR used? For example, should there be different rules for non-mediated settlement as opposed to court-ordered settlement?

It seems to me that the arguments are greater that one should have access when the parties are compelled into mediation or another form of ADR. On the other hand, what makes those processes work is the cloak of confidentiality that surrounds them. So it's a real question of policy. I think the courts and legislatures are willing to sacrifice some access in favor of another important societal goal, which is the settlement of disputes. But where one of the parties is a governmental entity, the arguments are greatest that the media should be permitted access.

Why is confidentiality so important to parties?

Here it is helpful to distinguish among ADR processes. I'll speak mostly to mediation: mediation is a process in which two parties, aided by a mediator, discuss the issues that are presented by the conflict as well as the underlying concerns, problems and issues that give rise to the conflict. Often, people are reluctant to do this to begin with. Indeed, it is part of a mediator's job to talk about the very things that people want to avoid. Yet for the process to work, these issues must be discussed. The mediator must create an environment in which that kind of discussion can take place, and in order for the process to work, particularly when you talk about private disputes like family matters or business matters, the parties need some assurance that their statements won't come back to hurt them, such as being used in a court of law, be used in a later proceeding or be disclosed to a
business competitor. Without such assurances, parties just would not be willing to participate.

Do you have an opinion as to whether it is better policy to allow access to ADR or not?

I think that, as a matter of policy, the courts have struck the correct balance between these two important competing interests -- access to dispute resolution and the societal interest in promoting early settlement of disputes. During early settlement discussions, either with or without a mediator, the parties need some space to talk frankly about their issues and concerns without fear of seeing it in the paper the next day or having it come back to haunt them in a subsequent trial. But there are harder questions. If one of the parties is a public agency, an open discussion may need to take place for the public's benefit. And even harder questions arise when there is a great public interest in the outcome of a private dispute, such as the Firestone cases. There's a great public interest in what happened, but there's also a great public interest in settlement that may outweigh the interest in access.

What should a journalist know to better understand the process?

There are plenty of stories that can be written about the conflict that don't necessarily require the media to be in on the details of the settlement discussion. There really is room for both interests [in access and in confidentiality] to be satisfied. But a journalist should understand what the process are, what mediation is and how it is different from arbitration.

Second, journalists should understand the reasons why confidentiality is important in private consensual processes like mediation so they can continue to cover the case and work effectively with parties and mediators. When I was a journalist, I had access to settlement negotiations, but I had to make assurances that certain things wouldn't be reported. The information allowed me to cover cases fairly and get background information, even if I didn't print everything.

If you develop trusting relationships with people in the mediation process, such as mediators or attorneys, you can still get good stories.