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Alternate Dispute Resolution (ADR) and Whistleblower Cases

Whistleblower cases directly affect public interest because they are concerned with public safety issues. An article posted in Law360 describing how these cases are perfectly made for arbitration also demonstrates how this method is an affront to justice. These types of lawsuits shouldn’t be arbitrated for various reasons, one being that a company’s wrongdoing would not be made public because evidence is kept secret.

This article could be considered a poster child for everything that is wrong with our fascination with Alternate Dispute Resolution as a means of resolving cases that are brought in the public interest.

A Whistleblower suit is uniquely one in which the public has a vital interest.  After all, the heart of the suit is that the public coffers have been swindled by some corporate giant. What could be more important than public exposure of the wrongdoing of a company that directly and adversely affects the public interest?

The very reasons given by the author, a professional ADR arbitrator/mediator, are the best arguments as to why such suits should never be arbitrated:

  1. Arbitrations are private and secret, so the public never learns whose hands are stealing from them or for how much.
  1. The evidence is secret, so the bad guys are never exposed and the public never learns the identity of those willing to line their greedy pockets with unearned public money.
  1. The article hypes the “experienced and fair minded arbitrator” but omits the fact that any decision is shielded from public view and is not reviewable by any other “experienced and fair minded jurists” who might find the fact finding and reasoning of the first highly flawed.
  1. The “experience and fair minded arbitrator” is not accountable to anyone, and an aggrieved party has no method of exposing even crazy decisions, let alone ones that fail to follow the law or make sense in finding the facts.

It is an affront to the very notion that Whistleblowers act for the public good in exposing corrupt and graft ridden activities that rip hard earned money out of the citizenry to suggest that resolving such matters in the fetid darkness of secrecy is the best way to protect the public interest.

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