“Or… the First of the Dominoes to (Finally!) Fall for Forced Arbitration”
If you search the word “arbitration” in any of my past blogs over the years, you’ll know what arbitration really is versus what its proponents say it is.
The short review: Arbitration is a process where you give up your right to access a trial by jury in a court room in exchange for putting your claims before a single person hired and paid for by Corporate America.
Oh, of course, the arbitration associations will tell you that the arbitrators are “neutral” and “fair,” and they’ll even tell you that when your matter begins in arbitration, you’re not just assigned someone randomly; you’re given a list of 10 or more names from which both parties can choose.
That’s a pretty clever lie. Yes, you get a list. But no, the list is not composed of “neutral” people, or people who have plaintiff experience, as lawyers, versus defense experience. The lists are composed almost entirely of representatives of Corporate America (some of whom are not even lawyers!) whose experience is almost exclusively in defending, protecting and advancing the interests of corporations, not their employees.
Meaning, not you.
Who likes and wants arbitration? That’s another popular corporate lie. The lie you’ll be told by Fox News, by the Federal Chamber of Commerce and in every commercial that Corporate America pays for is that “everyone” wants arbitration. After all, the lie goes, arbitration is “quicker” and “less expensive.”
Quicker? Is that always best?
Let’s pretend, for a moment, that you’re not contemplating filing a lawsuit. Instead, you’re going under the knife for life-saving surgery. Do you want the quick doctor or do you want the best doctor? Let’s say you’re building a house. Do you want the architect who draws up the plans in three days or the one who takes three months to do it right? I could go on, but you get the point, right?
People who want things done “fast” are either impatient, ignorant or they have an agenda that speed conceals. “Rushing” the process of litigation and trial (by replacing trial with arbitration) isn’t just “faster,” it’s much worse. You lose the opportunity to have adult men and women who share your perspective, understanding and experience listen to the dispute. You lose the opportunity to have your attorney fully discover the facts you need to prove your case and to prove your damages. You lose the opportunity to question other witnesses, learn about other lawsuits against the same company for the same evil conduct, etc. You lose the chance to have an appeal court review the process for errors.
And “Less expensive?” For whom?
When you hire a lawyer to advance your civil rights, employment, personal injury or nursing home case, the lawyer takes that case on a contingency, which means he or she’s only paid when and if they win for you. So you don’t have any expense in a court case. So who’s saving the money in this “less expensive” lie?
Give you one guess.
And by the way, arbitration costs more money than Court does. Judges and juries are free. Arbitrators cost money. So what’s this bullshit about “less expensive?”
Well, even though the corporations have to pay more for arbitrators than they do for judges, they must have a reason, right? Guess what it is.
Arbitrators are not fair, the process is not fair, and plaintiffs rarely win. THAT’s how it’s “less expensive.” Arbitrators who don’t allow plaintiffs to win certainly make things “less expensive” for Corporate America, don’t they?
That’s the great lie of arbitration. It’s a process that literally usurps and destroys the trial by jury enshrined in the Constitution and for which countless thousands of Americans have given their blood. Arbitration, on the other hand, the process where one person with complete and ultimate control over the dispute decides the dispute, is exactly like the tyranny that the Europeans who came to America’s shores were fleeing. If the King is always right, and the King always sides with the nobility and the people who have money, and there’s no appeal, how is that fair?
Again, the lie of arbitration is that the process pretends to be fair and neutral when it’s just a surrogate for the King making the decisions and telling you that they were fair all along. And if you don’t like it, go pound sand.
So why do we have arbitration?
Because Corporate America wants it, and generally, what Corporate America wants, it tends to get.
But that’s starting to change. People are starting to wake up to this pernicious evil, and, more importantly, legislators are finding the courage to challenge this monster.
There’s great news from the American Association for Justice (AAJ) concerning the routine victimization of nursing home patients who wish to challenge in a court of law the abuse and neglect to which they are subject.
AAJ recently announced that the centers for Medicare and Medicaid services (CMS) has finalized a new rule that will ban nursing homes and long term care facilities from requiring their residents to “agree to” pre-dispute arbitration as a condition for receiving federal money through Medicare and Medicaid.
The practical impact of this rule will be that the overwhelming majority of nursing homes will cease their practice of forcing residents to sign pre-dispute arbitration agreements. Obviously, no one “agrees” to mandatory binding arbitration. The reality is that if you don’t “agree,” you simply don’t get service. It’s the same if you don’t click “agree” for your iPhone update (which, since I know you haven’t read it, you should know contains a binding arbitration clause preventing you from challenging Apple in court or from joining a class action against it).
This rule is a major breakthrough in AAJ’s work for the public interest and is the first of the dominoes to fall, the end of which we hope will be the death of forced arbitration in America.
Understand, if anyone really agrees at arm’s length to arbitrate a dispute from positions of equal bargaining strength, that’s fine. But the history of arbitration in America when it comes to nursing homes, consumer contracts (remember that iPhone) and employment is that arbitration agreements are forced on consumers who can’t get the services if they don’t agree, on employees who can’t get (or even hold) jobs in they don’t agree, and on nursing home residents who don’t get care if they don’t agree.
As a trial lawyer and proud member of the American Association for Justice, I applaud this success and the efforts of New Jersey legislators, some of whom are beginning to introduce bills that prohibit the taking advantage of New Jersey workers and consumers through the evil of forced arbitration.
I’ve never been afraid of a fair fight. Arbitration is Corporate America bringing a gun to a fist fight. That’s not fair. If the defendant thinks they’re right, why don’t they trust a jury to decide?
Support legislators who attack forced arbitration in New Jersey and nationally. Elect candidates who believe that the court system and the access to civil justice is as fundamental an American right as the freedom of speech, the freedom to assemble or the freedom to worship as one pleases.