Professional Liability Blog

IntroductionArbitration is a powerful tool for those involved in a professional malpractice action—an area of liability that, despite numerous state efforts, can still be resolved using alternative dispute resolution. See, e.g., Triad Health Management of Georgia, III, LLC v. Johnson, 679 S.E.2d 785, 789 (Ga. App. 2009) (statute providing that “no agreement to arbitrate shall be enforceable unless the agreement was made subsequent to the alleged malpractice” is preempted by the Federal Arbitration Act); Marmet Health Care Ctr. v. Brown, 132 S.Ct. 1201, 1203 (2012) (state law prohibiting a particular type of claim from arbitration is preempted by the Federal Arbitration Act). Unlike public litigation, arbitration provides parties with privacy and confidentiality. Indeed, confidentiality is seen as the principal advantage of arbitration. See, e.g., Global Reinsurance Corp. v. Argonaut Ins. Co., 2008 WL 1805459, *1 (S.D.N.Y. Apr. 21, 2008). This advantage can be particularly useful in the professional malpractice context, whereby arbitration ensures a spotlight is not placed directly over the facts surrounding the alleged malpractice. But, is arbitration truly confidential? Emerging case law suggests the answer is “not really” or “maybe not.” See, e.g., Eagle Star Ins. Co., Ltd. v. Arrowood Indem. Co., 2013 WL 5322573 (S.D.N.Y. Sep. 23, 2013).