Arbitration. What role should it play in our justice system? What role does it currently play? These are important questions if you have an interest in seeing that those injured are able to access the courthouse for justice.
As Federal policy, arbitration began as a means for sophisticated businesses to resolve complicated commercial disputes privately. That is the proper role arbitration should still play today. However, it has become something very different.
Forced arbitration. That is what arbitration has become. It is no longer a matter of significant negotiation between companies entering complicated contracts. Forced arbitration has become a means for businesses to deny justice to individuals injured by their misconduct. Forced arbitration has closed the courthouse doors to you and your family.
Buried in the fine print of your basic documents -- related to all kinds of consumer items used daily, such as credit cards, television cable, car purchases, cell phones, retirement accounts -- are forced arbitration clauses that deny you the right to go to court. Do you have an elderly parent or relative in a nursing home? Most likely, there is an arbitration clause in the documents admitting them. That means any injuries due to negligence or abuse will be arbitrated before someone chosen by the nursing home. Does that sound fair?
In arbitration, there is no judge, jury or right to an appeal. The arbitrators do not have to follow the law, and there is no public review of decisions to ensure the arbitrator got it right. Moreover, contracts typically name the arbitration firm that must be used – the one preferred by the company.
People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.
Think some private arbitration group chosen by the company will be fair? Think again. Several years ago, the Attorney General of Minnesota spotlighted one private arbitration group. It turns out the group was the chosen arbitrator in many collection actions. Yet, it was discovered that the arbitration group was largely owned by certain debt collection companies. Does it sound fair that consumers should be forced to submit their disputes to a private arbitrator tied by ownership to the very companies and industries at issue?
It is outrageous that we can be forced to give up our Constitutional right to a jury trial just to hold a job or purchase necessities for life. A few days ago, the Arbitration Fairness Act was introduced into Congress. What does the Arbitration Fairness Act seek to accomplish? Simply, it protects the rights of citizens to justice in our courts. A press release by one of the Congressmen sponsoring the bill, says that its purposes are:
What the Arbitration Fairness Act Does:
- Restores the original intent of the FAA by clarifying the scope of its application.
- Amends the FAA by adding a new chapter invalidating agreements that require the arbitration of employment, consumer, or civil rights disputes made before the dispute arises.
- Restores the rights of workers and consumers to seek justice in our courts.
- Ensures transparency in civil litigation.
- Protects the integrity of the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, among others.
This is an important proposal. The courthouse doors should not be closed to families who have suffered personal injuries or damages because of corporate wrongdoing.