Most consumer lawyers will agree that Arbitration is a cancer that is metastasizing within our society at an alarming and unfortunate rate. The concept of arbitration originated as a means for resolving disputes more efficiently and economically between certain parties than what supposedly takes place in a congested Court setting. This made sense in limited situations where a quick resolution of certain types of controversies was necessary as with disputes in construction and others involving deadlines which could not wait to be resolved in court. This usually took the form of including a provision for arbitration in a contract between parties where each freely negotiated for and consented. A typical example might be a contract between an Architect and an Building Owner involving the design and construction. In other words, persons on relatively equal financial footing and with equal bargaining power. Unfortunately, today this has evolved into placing a forced arbitration provision in preprinted contracts prepared by all types of businesses and financial entities who then present them to consumers on a take-it or leave-it basis. These are referred to as “contracts of adhesion” where the consumer has no input or power to negotiate if he or she wishes to obtain the product or service that he or she desperately needs for the family.
The typical arbitration provision in a consumer contract will require that any and all disputes that arise between the parties must be submitted to arbitration with no option to engage in litigation. This means that the consumer does not have the right to have his or her claim determined by a jury or a judge. Additionally, the decision of the arbitrator, unless it is the result of fraud or corruption, will be final and binding with no right of appeal no matter how incorrectly decided on the law or facts presented. The provision will also conveniently contain a waiver of the right to pursue any claim on a class action basis. Of course, we know how much class actions are favored by Big Business. So much so that a rule enacted by the Consumer Financial Protection Bureau (CFPB) guaranteeing the right to bring class actions in consumer transactions was recently reversed by a vote of the Republican controlled Senate which you might have heard or read about. It was extremely disappointing.
The process of arbitration itself is not much fun. Basic discovery that one needs to obtain evidence to successfully prosecute a claim is extremely limited. The procedural rules themselves of these arbitration organizations severely restrict the ability to engage in discovery. You are at the mercy of an arbitrator with little or no trial experience and who may or may not have any idea of how to successfully try a case or knowledgeable in the area of consumer law. You literally have to beg to take depositions.