NDAs in Employment Disputes Need Attention Early in Process - ADR Systems

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Hon. Margaret A. Brennan, (Ret.), senior mediator and arbitrator at ADR Systems, recently published an article in the Chicago Daily Law Bulletin. Her article, NDAs in employment disputes need attention early in process, encourages counsel to carefully consider the use of non-disclosure, non-disparagement and confidentiality agreements in settlement agreements to employment disputes in light of statutory requirements in the Illinois Workplace Transparency Act, 820 ILCS 96, and the Speak Out Act, 42 U.S.C.A. Sec. 19403.

“Good work, you are trying to resolve an employment dispute short of trial or hearing. At some point during your discussions, however, one or both sides will add — often at the last minute — something akin to ‘And of course we will include a non-disclosure agreement and confidentiality.’ What? Whoa. Hold up there,” wrote Judge Brennan at the start of her article. “These terms are not always so simple and should not be a mere afterthought to settlement negotiations. Illinois and federal law have much to say about their use, and as is often the case, their inclusion in settlement agreements can impact a settlement’s monetary value. Thinking about these issues ahead of time and using them in the right way during the negotiation process, therefore, is crucial in employment dispute negotiations.”

This is Judge Brennan’s second published article since joining ADR Systems. In 2022, Bloomberg Law published her first article, Use of ADR to Enforce Rights in Cannabis Contracts, which explores the use of mediation and arbitration to resolve cannabis-related commercial disputes and why it is a preferable to litigation.

To read Judge Brennan’s latest article, click here.

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Hon. Margaret A. Brennan, (Ret.) served for 19 years in the Circuit Court of Cook County Chancery and Law Divisions and cultivated expansive knowledge of commercial cases such as employment matters involving discrimination and retaliatory discharge, construction and legal malpractice disputes. Colleagues commend Judge Brennan’s intelligence, persuasiveness, remarkable patience, careful case preparation and boundless energy, which contribute significantly to her success as a senior mediator and arbitrator.

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Our mediation using videoconferencing was convenient and effective – we settled! Judge Casciato gained the party's trust and confidence while deftly guiding us through the negotiation process via a videoconference.  With the use of virtual breakout rooms, Judge Casciato was able to spend private time with everyone.  This remote mediation worked well for us and I would not hesitate to use it again.  

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