You probably don't know it, but you've likely agreed to settle disputes by arbitration rather than in court. This is because many companies now routinely insert into their fine print arbitration clauses that cut off access to the courts (except for very limited circumstances). Oh, and those same clauses pick who the arbitrator will be. Of course, consumers get no say in this and often don't even know the clauses are in there. They only find out when the company does something wrong, violates the contract, and they try to sue, only to find out that they aren't allowed to.
Now, don't get me wrong, I have nothing against arbitration. It can be a much quicker and cheaper way to settle a dispute. I'm all for it. I'd just rather it be voluntary rather than pushed in an adhesion contract. Given what is at stake and what those clauses represent, nothing less than giving up your constitutional right to a day in court, I'd say anything less would be unacceptable. Some see these clauses as no different as any other contract clause. I beg to differ. (And I did in the comments to that post). I proabably even generally agree that it can be bad for the courts to nullify provisions of contracts for being adhesion contracts. That creates a lot of uncertainty. But I draw the line when it comes to totally giving up your right to even have a neutral magistrate hear your contract dispute.
It might be different if there was a neutral organization that was part of the judicial branch (fully funded by the taxpayers and fees, like the court system) that handled arbitration. A system that was like that, and whose members were selected like judges are selected (by election or appointment) would be acceptable. Then you'd at least be no worse off than you would be in court. But where who gets to decide is set by the dominant party, that is unacceptable, any more than it would be to get to select which judge decides your case. Even worse than that, the salary of the arbitrator is pretty much paid by the corporation through the business it sends to him or her through those contracts. That is a pretty strong incentive to find for the corporation. Which is why I'd rather see such clauses totally optional on the part of a consumer. You check the box, you get arbitration, otherwise, you get your day in court. And then it should also allow the consumer to choose the arbitrator. Then it couldn't be said that it wasn't fair and that it wasn't freely bargained for.
Absent that, or absent arbitrators being elected officials, I don't see how enforceing adhesion contract arbitration clauses is anything but unfair.
4 years ago