Did you read the three articles on arbitration The New York Times published on October 31, November 1 and November 2? They tell a series of horror stories about arbitrations in employment, consumer and religious settings. I was sorely disappointed by them because they continued the trend to politicize arbitration.
This trend toward treating arbitration as political football didn’t just start last week in the Times. For some time now, one side has painted arbitration as bad for consumers because it limits class actions. They contend that class actions tackle the small issues that no individual would litigate. They say they help keep big corporations honest. Another side has said arbitration is good for consumers because it is less expensive and more accessible than litigation. They contend that class actions are bad for consumers because when class action litigation settles, the consumers may receive small gift certificates while the lawyers get big legal fees. See, for example, this article by the US Chamber of Commerce Institute for Legal Reform in response to the Times articles.
Here’s the thing: arbitration is not the problem. Arbitration, when conducted properly, is a fair, simplified, cost-effective, accessible, timely process that concludes with a binding award issued by a knowledgeable, neutral arbitrator. By its very nature, arbitration is not a political process. But if it is not “conducted properly,” arbitration can be subject to abuse like any other ADR or adjudicative process.
One of the things I have always loved about ADR is that it is apolitical. Whether you are left or right, ADR probably fits with your values. Who doesn’t like a fair, cost-effective, easily-understood process? So, let’s not politicize – worse yet, demonize – arbitration. Instead, let’s look at whether arbitration continues to be the fair, cost-effective, simplified process it was meant to be. Let’s look at how complex the process is, what outcomes it produces, how long it takes, what it costs, how convenient it is and how fair all the parties think it is.