The presentation to the Law Society of South Australia yesterday afternoon went well.[1] A delegate has since asked this:

“I am assuming that unlike a mediation where parties are precluded from referring to anything said or done during a mediation, there is no confidentiality/settlement privilege over any documents/proceedings in a pendulum arbitration since it is more like a trial and is meant to be a final judgment?  Is this correct?”

The answer is “Yes and no”.

“Yes” in the sense that a pendulum arbitration is likely to be confidential in the same way as every other arbitration. That confidentially prevents publication of either the proceedings or the result to the public.

But “no” in the sense that in the unlikely event of the pendulum arbitrator doing something really stupid, it is open to the parties to challenge his/her misconduct in court, just like in any other arbitration.  In practice, there is likely to be little or no opportunity for such challenge in cases where the pendulum arbitrator understands the process.

[1] The Law Society writes:

Thank you so much for the excellent presentation. It was wonderful to see the in-person turnout and the engagement of the attendees.

We truly appreciate the time and effort you put into preparing this presentation. We hope to have the opportunity to work with you again in the future.