Sorry buddy, but arbitration rules don't work that way.
For all the arbitration hate here, i'm going to guess that basically nobody here has any experience with arbitration past reading articles about how they are "company friendly" or whatever.
I'd really love to know what's wrong with arbitration in theory (it's definitely more effective and efficient than going to court for 7 years).
Most of the complainers are the plaintiffs lawyers who can no longer sell sob stories to juries and get millions because juries are easy to sway.
IE you present statistics on how "company friendly they are". These statistics do not take into account that maybe these people should be winning these claims. Given how many claims are completely worthless, ...
And please, read the normal JAMS or AAA arbitration rules, which are generally quite fair, before complaining.
Because i would suspect most of the suggestions that get made are already the way things are.
This response is a little on the hostile side and doesn't address the clear problem that there is an economic incentive for arbitration companies to provide resolutions favorable to the company providing their source of income. That is a problem in theory with arbitration when contracts prohibit people from taking the case to court if arbitration doesn't prove fair.
Dismissing posters as "complainers" and arguing that they don't have first hand experience completely skirts around this problem and isn't a reasonable argument.
There also seems to be a flaw with where you suggest people have a bias, then proceed to say maybe the companies should be winning and it's okay to have the bias that "many claims are completely worthless."
Statistics can demonstrate that arbitration is more than favorable in situations where companies did something that should at least require a refund, and this has been brought up as evidence in recent articles.
There simply is no check or balance to such an arrangement where one party picks and pays for the judge and process that will be used to settle a distribute. I find it suspicious that someone wouldn't see this as a challenge.
I've read about the benefits of arbitration in situations where it isn't deployed as such a one-sided method to sidestep the law, but this arrangement isn't one of them.
"This response is a little on the hostile side and doesn't address the clear problem that there is an economic incentive for arbitration companies to provide resolutions favorable to the company providing their source of income."
You certainly realize the justice system has the same problem, right?
Judges are elected in most states, and not by corporations.
You are also quite literally paying their salaries.
Additionally, if you had any source of statistical data showing that arbitration was an unfair process, that would be admissible to get the arbitration thrown out.
"There simply is no check or balance to such an arrangement where one party picks and pays for the judge and process that will be used to settle a distribute"
According to roughly all arbitration rules, the arbitrators can be picked by the people complaining.
> Additionally, if you had any source of statistical data showing that arbitration was an unfair process, that would be admissible to get the arbitration thrown out.
False. The Federal Arbitration Act applies in most cases where a party has "agreed" to arbitration, and pre-empts state law. A party can't just show "any" source of statistical data showing arbitration is unfair. If they run to court, in most cases, all the other party has to do to succeed in a motion to compel arbitration is establish that an arbitration agreement exists, applies, and meets the minimum procedural requirements for arbitration under the FAA. The court will not entertain an inquiry into the fairness of arbitration in the large or examine statistical evidence. It will basically rely on the text of the arbitration agreement standing alone.
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
...
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
..
So, i guess you don't think this means what it says?
What I said have nothing to do with arbitration rules. Unless ALL available arbitrators can make the same fair judgement, it's just a matter of the company switching the services until they find one that has the result they like (not necessary because of malicious intent on the arbitrators side). The same issue happens in court as well, and we do complain about it just as much (how the IP lawsuit tends to concentrate in a small set of courts and justices). But it's probably harder to pick and choose court/ justice than you do arbitrators, unless I'm mistaken on this count?
They work exactly that way. If the arbitration company doesn't produce results that favor my company we will dump them as a service provider. Each year, we can run an A-B test, randomly assigning cases to two arbitration companies, and whichever one has a higher win rate for us will stick around next year, and the other one gets fired. After a few years of that we should have a provider that performs really well for us.
Exactly right! Businesses use arbitration because it works better for them. They are the ones hiring the arbitrators. How about the other way, why can't regular people say I won't sign your contract unless you agree to use my arbitrator if there is a problem - people can't because they don't have that power.
"e: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win
rates reported in employment litigation trials; (2) in cases won by employees, the median award amount was
$36,500 and the mean was $109,858, both of which are substantially lower than award amounts reported in
employment litigation; "
These key findings are of course, completely irrelevant to whether this is the right outcome.
IE they are not good or bad in and of themselves.
" (6) the mean amount claimed was $844,814 and 75 percent
of all claims were greater than $36,000."
The likelihood that this amount claimed is sane seems low when viewed over a group of 1200 people, and particular, people who pretty much all make < 100k a year.
"The results also indicate the existence of a significant repeat employer-arbitrator pairing effect in which employees on average have lower win rates and receive smaller
damage awards where the same arbitrator is involved in more than one case with the same employer, a finding
supporting some of the fairness criticisms directed at mandatory employment arbitration"
The conclusion aout fairness does not follow from these facts of course, in any way. It may be the arbitrator now has a better perspective on the way various folks may be trying to game the system or whatever else.
You will also find very similar pairings in state vs federal venue win rates for employees and class action lawsuits.
Yet i don't see anyone here screaming that this is unfair
So given the evidence that arbitrators are substantially more biased towards corporations than regular courts are, your argument is that it's actually the courts that are biased in favor of individuals and the arbitrators are actually perfectly fair and impartial.
I suppose that isn't ruled out by the evidence at hand. But isn't it more likely that regular courts, with all their rules about conflict of interest and judges that aren't paid their salary by one side of the dispute are a little more likely to be the fairer ones?
"But isn't it more likely that regular courts, with all their rules about conflict of interest and judges that aren't paid their salary by one side of the dispute are a little more likely to be the fairer ones?"
In my experience, no ;-)
Also, they are paid by one side of the dispute - you pay judges salaries ;-)
In a lot of states, they are directly elected, too.
All my customers will ever know is that their disputes are required to be arbitrated by "Super Fair Arbitration, Inc.". They won't know that Super Fair has a 99% corporate win rate, and that we pay them a bonus every year the win rate for us is over 95%.
Hey, I'd be the defendant in a case that may go to arbitration. The company claims that I've committed a violation of their ToU. To the extent that their ToU is a valid contract which I've actually entered (presently a point of dispute), it also stipulates that all non-intellectual-property claims must be settled through a neutral arbitrator.
This actually gives me a little bit of hope, because if it happens, I may be able to sway the arbitrator in my favor, as arbitrators are not bound by case law (currently ambiguous but slightly leaning against me) but their own ideas of fairness and justice.
In an actual court, it'd cost me millions of dollars in legal fees before the case got close to a final resolution, and I personally think it'd be very difficult to get a positive outcome, for a handful of involved reasons. With an arbitrator, the prospect of millions of dollars in legal fees is off the table, and there's no data at all as to the likelihood of success since it seems to be wholly dependent on the actual individual that ends up hearing the case. The case hinges on a modern understanding of a technical issue. If the arbitrator is not tech-savvy, he'd likely favor Big Corp. If he is, he'd likely favor me.
My primary concern is that the arbitrator would want to side with the Fortune 500 company in question here, because they're a Fortune 500 company that can bring his arbitration firm a lot of money. I even have this concern to some extent with bona fide judges, and especially have this concern with regard to international operations. The fact is that there is potentially a lot more to gain by making Big Corp like them than there is by getting a fair result for little old me, who is just a regular chump and unfortunately not one of the wealthiest entities on earth. There's not even really street cred, because most people really like this Big Corp.
Pretty much the only hope I'd have is that the arbitrator, judge, court system, and everyone else involved has a rock solid commitment to justice and fairness, unphased by the allure of Big Corp's massive money-dick wagging all over the place (I should note too that this massive money-dick was substantially involved in creating the legal grey area they're using to go after me in the first place, so maybe that should be a good indicator of my prospects). Can you give me some hope that I'd get a fair hearing?
Of course the arbitrators have to side with the companies often, otherwise the company will change the arbitrator.