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Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh
Dispute Resolution Neutrals' Ethical Obligation To Support Measured Transparency, Nancy A. Welsh
Nancy Welsh
In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s …
Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh
Class Action-Barring Mandatory Pre-Dispute Consumer Arbitration Clauses: An Example Of (And Opportunity For) Dispute System Design?, Nancy A. Welsh
Nancy Welsh
Ultimately, this essay will conclude that a private, ad hoc dispute system design process did lead to the insertion of class action waivers in mandatory pre-dispute consumer arbitration clauses. In-house and outside counsel certainly played key roles in initiating this process, but it is unclear that any individual lawyers could claim credit or responsibility as "designers." The representatives of dispute resolution organizations, meanwhile, played supporting roles-as providers of information and as amici in Supreme Court litigation. The essay will consider whether dispute resolution professionals could have managed their role in the process differently-and if so, why they would have managed …