What is Arbitration?

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Arbitration is not about giving you speedy resolution for a complaint you may have against a corporation. Arbitration is about establishing immunity for corporations.

Arbitration makes perfect sense where two parties to a contract, with equal bargaining power, make the business decision that a private system of dispute resolution is preferable to the courts. But arbitration is inherently unfair and unconscionable where a corporation tells its customer that in order to utilize its services, the customer must agree to arbitrate any claims.

To those corporate apologists yelling that if the customer does not like those terms, then the customer should go someplace else, I hear you. While this sounds perfectly reasonable, the practical truth is that the customer actually has no choice. If you want a cell phone, you have to agree to an arbitration clause since every carrier demands one. The same is true, or soon will be with the Supreme Court’s granting of corporate immunity, across the range of consumer services.

The Bill of Rights were enumerated to protect fundamental rights. Notably, those rights, particularly those dealing with a citizen’s access to courts are concerned not only with the actual right, but also the procedural guarantees that are necessary to give substance to the underlying right. You can have a right to a speedy trial, but that right does not mean much if you also do not have a right to have a counsel assist you in the process. No less is true of a right to a trial by jury. Unilaterally imposing an arbitration clause in your consumer contract, substantively and procedurally denies you a basic Seventh Amendment right to have a jury of your peers determine whether a corporation has harmed you. Forced arbitration is not only unfair, it is inherently un-American.