September 27th, 2007

Summary:   -updated- Can your congressional representative be bought? A report on Binding Mandatory Arbitration agreements, and a bill before congress to take back the law from the corporations. It's an eye opening experience to see how many people have received contributions from the fat cats.

I phoned into the news conference today publicizing the release of Public Citizen's report on Binding Mandatory Arbitration, but had such bad reception I finally had to hang up. However, I don't need the press conference–all I needed was the report and what a report it is.

I've read a lot of the horror stories on mandatory arbitration clauses hidden into contracts, but wasn't that aware of how widespread these have become. If you have a cellphone, you've agreed to binding mandatory arbitration; ditto for having cable, satellite, buying a new home, car, or computer. Getting a new job, going to the doctor, even just having a name, because you could end up in arbitration on nothing more than a case of mistaken identity. Arbitration doesn't have the same requirements as a court, so the companies don't have to verify you've been informed of the proceedings, or even given a chance to participate. You could lose an arbitration case, and only find out afterwards that someone stole your name and credit card to run up charges.

The report also has statistics, as well as a good history of what happened in the Supreme Court over the last few decades to get us into this mess.

As reported in this ABC News Report the arbitration companies, who make millions of dollars on arbitration, say it's all fair and beneficial to the consumer. If this is so, then why hide these arbitration agreements? Why sneak agreements in, in small print? Why not give people a choice of arbitration or court trial? You'll find that no arbitration company will ever answer these questions. That should be a red flag to all of us.

The Arbitration Fairness Act of 2007, which only seeks to eliminate binding mandatory arbitration agreements, has the support of every consumer group in this country, not to mention associations of home owners and other organized groups of consumers.

On the other side, though, are very rich banks, builders, manufacturers, HMOs, and pharmaceutical companies and others who are pouring thousands, hundreds of thousands, of dollars into Congressional pockets. The only reason a Congressional representative will vote against this bill is if they've been bought. There's no good moral, legal, or logical reason not to support the passage of the Arbitration Fairness Act of 2007.

Take a few minutes, download the report, read some of the cases, and make sure to check out Appendix A with a description of the history of mandatory arbitration. Then, let your congressperson know you expect them to vote for this bill, or be prepared to explain why they did not.

Comments
1

No arbitration works, though, when one party is a large corporation, and the other party a private citizen.

I disagree. While the situations you are talking about are certainly heavily one sided, this happened because the one thing that ensures fair arbitration has been eliminated: mutual selection of the arbitrator(s).

Without that, even in your ideal case where the parties are of a similar type and size, you can run into the same class of problem: regulatory capture.

With mutual selection of the arbitrator(s), arbitration can seriously level the playing field between parties, and NAF would be out of business.

2
Shelley - 9:39 pm 9/29/2007

I have to disagree back, Michael. One thing that sets arbitration apart from the court system is that the arbitrator is usually a private individual who is paid for their time by the participants. Judges are paid by the government. The privately funded arbitrator is always more vulnerable to financial pressures more than the judge.

Even if they aren't, arbitration can be more expensive, there is no jury, and the results are binding, unless both parties agree this is just an advisory arbitration. Discovery can be limited with arbitration, room fees may be charged, it's just a whole different game.

If the company was smaller, perhaps, especially if privacy is an issue to us both. With another individual, both of us really wanting to come up with a viable solution, and the value is too large for small claims court, sure. If I were to ever get married again, I think divorce settlements can be handled through arbitration (not sure). But not with a larger company. I want the full force of the legal system behind my butt with the big guys.

I might consider mediation with a company, especially if it's a dispute about a value of some form, but that's to give me and the company a chance to peacefully work through a resolution– there's no risk of a decision being applied if the resolution process fails.

Do you have an instance of the type of situation you're thinking of you can point out?

3

All of the failure modes you mention are possible with arbitration, but with mutual selection of the arbitrator(s) any that have a history of deciding in a slanted way are eliminated by one side or the other. The same goes for excessive fees, unfair procedures, etc.

I don't have a specific example in mind, but I do have a case where the selection criteria of an arbitration agreement was thrown out (by a court) because it was unfairly slanted, and a fair selection process put in it's place.

In many situations, arbitration can work better than the courts, because the parties can mutually select an arbitrator (or several, usually an odd number) that is impartial, has a track record for fairness, no known biases, and is knowledgeable about the area in question (and we've all seen what happens when ignorant judges decide technology-related cases). A fair selection procedure (and independent arbitrators) is key.

BTW, I am absolutely certain that arbitration is NOT the correct answer in all cases, and that it is being horribly abused by the corporations that employ the NAF. I just think that the B&W lines you've drawn based largely on the relative size of the parties are misplaced.

Checks and balances are necessary. These can be (and have been in many cases) removed from the court system just as they can be from an arbitration system, leading to the very same kinds of regulatory capture.

All I'm saying is that the same sort of vigilance is necessary in both systems for them to work well.

Thanks to all those who have contributed to the discussion. Comments are now closed, but you can contact the author of the post directly.