Elayne E. Greenberg.
This first-of-its-kind paper introduces ethical guidelines and suggested practices for dispute resolution providers and neutrals when third-party funders provide financial backing for parties in U.S. domestic arbitrations and mediations. Sophisticated third-party funders have realized that litigation and dispute resolution are fast-growing, unregulated investment opportunities. Seizing these opportunities, third-party funders are now making billions of dollars in profits through their strategic investments in domestic and global litigation and dispute resolution with few ethical rules or regulations to curtail their investment behavior.3 Preferring to be secretive about the terms of their funding contracts and invisible in their work, third- party funders are flourishing, in large part, by operating below the regulatory radar.4 The funders’ behavior has been allowed to proceed invisible and unchecked because courts and dispute resolution providers and neutrals are too often unaware that a party is even receiving third-party funding. Such unawareness, however, presents a potential ethical minefield, not just for judges and litigators, but also for dispute resolution providers and neutrals.