NW Collaborative
Futures Conference

How a Good Idea Became a Bad Idea:
Putting the Brakes on Non-Disclosure Agreements

The ability to protect confidential trade/research information in a non-disclosure agreement seemed reasonable – until NDAs started to appear in almost every area of civil settlement including sexual assault and abuse, product liability, construction defects, workplace terminations, human rights complaints, even personal injury cases. Far from narrowly drawn trade secrets, NDAs are now routinely used (along with non-disparagement clauses) to suppress discussion following a settlement of any type of bad experience including discrimination and harassment and sometimes potential crimes, treating these as if they are “trade secrets”. In the face of coming legislation to restrict the enforceability of NDAs in the US, Canada, Ireland, England & Wales what should mediators and lawyers be thinking and doing to be both proactive and ethical?

Speaker: Professor Julie Macfarlane

Professor Julie Macfarlane is a Canadian law professor who has spent her career researching, writing about and advocating for access to justice. She is Director of the National Self-Represented Litigants Project, and now Emerita Distinguished University Professor at the University of Windsor. Julie has researched and written on the legal system and the role of lawyers (The New Lawyer : How Clients are Transforming the Practice of Law 2nd edition, UBC Press 2017) and misperceptions of and prejudice towards Muslim communities in North America (Islamic Divorce in North America : Choosing a Shari’a Path in a Secular Society (OUP 2012). Her new book (Going Public: a Survivor’s Journey from Grief to Action Between the Lines Press, 2020) describes her personal experiences of sexual violence and her efforts to use the legal system for change. Most recently, Julie has been campaigning internationally (with Zelda Perkins) to end the widespread use of non-disclosure agreements or NDAs. Julie’s work has been recognized with a number of honours, including the Order of Canada (2020), named as one of Canada’s 25 Most Influential Lawyers (2017), the David Mundell Medal for Legal Writing (2016), and the first-ever Canadian recipient of the International Academy of Mediators Award of Excellence (2005).