I have my own take on arbitration but that makes me a little one sided as I see both the good and bad of the process. I’m very interested in what you have to say and see where a meeting of the minds may originate.
First thing to consider is: When is arbitration considered forced arbitration? Is it because it’s in a contract that the signer must “take-it or leave-it” or because there is no formal negotiating prior to signing or because terms are preset. What about AD-Hoc arbitration, is it forced?
Summary to Consider
Arbitration is a dispute resolution process where a third party neutral (retired judge, attorney or layman) hears a dispute to render an award which is normally binding, and this ends the dispute. Normally, arbitration awards are not appealable except under special reasons which stops the onslaught of appeal-appeal-appeal dragging out the case for years.
The time and expense of arbitration is typically half or less of a litigated court case. With the court on average taking five (5) months to over a year and costing a combined $20,000 or more; arbitration typically is resolved within 2-4 months with a typical combined cost of less than $8,000. Again, without years of appeals as seen in court litigation, this is where the case ends.
For employers, goods and service providers; this stops the bleeding of funds, keeps the matter confidential (which stops the “MeToo” crowd), controls the delay caused by time extensions and allows each case to be heard on its own merits.
For the employee, consumer of goods and services; it too limits the costs, controls the lengthy delay a well-funded corporation can throw and puts them on a fair playing field as they can present their case themselves (pro’se) or use a non-attorney advocate or hire an attorney. Since arbitration is heard on the merits of the case (typically) rather than the rule of law, these people get out with much less expense.
There have been abuses of the arbitrational process where the corporate powerhouse stacks the deck by placing in the contractual clause a far away city for the hearing requiring travel, denying the selection of an agreed neutral arbitrator or creating such an overbearing tribunal size requiring thousands of upfront dollars over a relatively small claim.
Solutions to Consider
Should contracts have within them an opt-out/in statement that must be accepted.? This would cause such great confusion as each claim would have its own set of rules and each case would have to go through a process to find out; does this case go to trial, can it be mediated, is this selected for arbitration?
How can the contract producer and the contract signer reduce costs if months of interrogatories and discovery must be done just to determine the course of proceeding action.? We all know discovery is a time sucking ordeal, as one who knows how to delay can force the other party to wait months for an answer. Then file a demand just to wait months again for a hearing just to have the answers arrive days before the hearing with a request to drop the hearing, which is normally approved without question. This just starts the entire process over again.
Someone who is wronged in employment is now without a paycheck which severely limits their funds. How can this person afford an attorney and fighting an attorney pro’se in the court of law is like performing your own open-heart surgery?
Then again, how can people who were abused, sexually harassed or discriminated against find solace in arbitration due to the confidentiality of the process. Should they be required to fulfill the arbitration agreement? There is no public outcry, no media coverage and the offender are free, with a little cash or internal correction, allowed to perform the same offense all over.
How can corporations, small businesses and mom-and-pop shops afford to be drug into a court trial; then afterwards, have several MeToo claimants who may or may not have been wronged in the same way pop-up to claim their piece of the proverbial pie. This is often caused by a winning claimant who shows others how much they can obtain by making the same or similar claim. The business normally pays out as there is a precedent set in the court and losing is almost certain. Where in arbitration, the new MeToo case must stand on its own merits.
Additional Concerns of Opt-Out/In Clauses
With the advancement of mediation and arbitration; the two are not the practice of law but an alternative to the dispute resolution process which gives parties options to avoid lengthy and expensive court litigation. If we require a secondary clause for arbitration, wouldn’t the formation of mediation clauses follow suit? If both processes are not legal practice but an alternative, wouldn’t we then have to add additional provisioning to mediation to opt-out/in of that process? What about “voluntold” mediation, where a judge orders parties to mediation. Would this now be a breach of the judicial power to order a selective non-practice of law alternative dispute resolution process before proceeding to trial?
Conclusion
We must be careful in how we select, contract and proceed with disputes and matters of law. Alternative dispute resolution processes were intended by Chief Justice Warren Burger to be an “alternative” to court litigation while saving time on the judicial process, reduce the ever-climbing costs to the disputants and lower the stress (especially in the family court) by eliminating the rigid courtroom structure and severe lack of option seeking or negotiating.
Parties need to be allowed the option to select the forum in which their dispute will be resolved or attempted to be resolved but we must not place an undue burden on victims from weighty corporate pocketbooks. On the obverse, we must allow corporations, mom-and-pop shops, and small businesses to save their resources by not interfering with their freedom of choice in dispute resolution.
Whether a dispute resolution clause (like arbitration) is added to a contract, as long as it’s not buried under tons of legal speak jargon to seemingly bewilder the average reader as seen in many telecom, hospital and cell phone contracts, but allow reasonable foreknowledge of a process that would interrupt court litigation in favor of an alternative dispute resolution process; I am on the side of freedom to choose the contract and in favor of the take-it or leave-it right of the originator. Where on the aforementioned lengthy legal jargon contract, I am on the side of moving this clause to the top 5% of the contract writing to give the agreeing party the benefit of knowledge before signing.
Finally, what is the balance for part and counter-part without involving the courts to make every decision and restricting the citizenry’s right to include less formal dispute resolution avenues. The majority of disputants have spoken well in favor of alternative dispute resolution processes since the 1970s. With the acceptance of these methodologies, both sides of the table have desired to overwhelmingly support these court alternatives, and this is evidenced by their rapidly growing notoriety. To interfere with the rights of both sides to choose alternatives to court litigation, we are stripping away years of beneficial, less formal, more peaceful options in leu of more fighting, lengthy court trials and return to the “he who has the gold makes the rules” mentality.
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