For months, consumer and employment attorneys and advocates have been trying to prove a negative – that forced arbitration agreements, block consumer and employee access to justice in that they deter consumers from asserting their rights and exculpate bad actors from truly being held accountable for their actions.
Professor David Schwartz’s recently published paper – Claim Suppressing Arbitration: the New Rules - Forced Arbitration – is a must read! It artfully and effectively demonstrates and articulates what consumer advocates know all too well. That, in fine print is a sustained attack upon consumer rights and access to justice. That, commercial contracts that are clicked through by consumers on a daily basis are neither fair nor balanced. They are adhesion contracts where one party sets the rules and in order to play, receive the service, buy a product, apply for the job, or even obtain credit or financing, a consumer must agree. The days of even pretending that any agreement between an individual and a large corporation allows for any negotiation are clearly over. Consumers or individuals have no option but to sign or click through and must agree to mandatory arbitration to settle all employment, civil rights and consumer disputes.
Arbitration is a private system without any legal protections. There is no public review of decisions to ensure the arbitrator got it right. Corporations write the clauses, which typically state who the arbitrator will be (who conveniently enough have tended to rule in favor of the corporations), under what rules the arbitration will take place, the state the arbitration will occur in, and the payment terms for the arbitration. Individuals have no say in the process and, because these clauses are in the majority of contracts, a person has no choice but to acquiesce or forgo the product, service, or job altogether. This ‘forced arbitration’ means giving up the most fundamental legal protection: the right to equal justice under the law.
I encourage everyone to take a few minutes to read Professor Schwartz’s article and to do your part to help us demonstrate how harmful is the practice of forced arbitration. If you have stories that demonstrate how forced arbitration suppresses important claims, please send stories to LegislativeUnit@naca.net.