« Early bird registration is now open for the 2016 ACR-GNY Annual Conference, set to take place on June 16, 2016 at Cardozo Law School | Main | Reasoned Award - What are your thoughts? »

Latest New York Times article on arbitration - What are your thoughts?

What are your thoughts/comments on the latest New York Times article on arbitration? Please see the following link:

http://www.nytimes.com/2016/05/15/business/dealbook/start-ups-embrace-arbitration-to-settle-workplace-disputes.html?_r=0

Kindly provide your comments/thoughts below.

Comments (7)

Mitchell Marinello:

Typical of NY Times articles on this subject, the stories always end with the plaintiff not being able to go to court. The articles never discuss what happens if the plaintiff goes to arbitration. The Times appears to be of the view that arbitrators cannot enforce the law. They also are of the view that class actions are great -- though they have no data other than anecdotal stories to support that thesis. Just another article in the Times biased campaign.

As was said in the movie, Poltergeist, "They're Ba-ack!"

Once again, the Times mounts an attack on arbitration that's long on anecdote and short on data. While stories from one side can be both entertaining and compelling, to quote my old Statistics 101 prof from college, "Anecdote doesn't constitute data." Where is the proof that arbitration is bad for consumers/employees or that class actions benefit these parties (and, no, citing the Times' interminable "investigation" from last Fall that was also long on stories and short on data doesn't count)?

Mind you, my personal view is that consumers/employees should have a choice on whether to participate in a class action, as has been the rule at FINRA for many years, and as the Department of Labor's new fiduciary standard rule provides, and as the CFPB has recently proposed, but broadside attacks on the arbitration process not based on data is not appropriate.

Mark Bunim:

Over the course of the last year, the NY Times has been on a crusade to debase and demean arbitration. All of its anti- arbitration articles have been written by the same reporter, Jessica Silver-Greenberg. Perhaps she had a case before a Panel and lost, so this is her way of “getting back”? Clearly these articles are more of a tirade than a factual analysis; and should be recognized as such. When the reporter states,
“[A]rbitration, by its very nature, is a secretive process that is often lopsided in favor of the employer,” which we as arbitrators know is clearly false, there can be no doubt that this is not a reporting piece but rather a reporter’s own effort to spin her cause. Shame on the NY Times for departing from good journalism standards and allowing the biases of a reporter to be published on the news pages (as opposed to as an editorial).

I think this is, unfortunately, a commonly held view. In Massachusetts, there is legislation to limit arbitration in the consumer sphere and I know California has pushed legislation to limit arbitration in employment, where I mostly arbitrate. This article made me think that there needs to be a countervailing view expressed, and wonder what public relations strategy we, as AAA arbitrators and the AAA itself can implement to demonstrate, statistically or otherwise, that employees (and other litigants) fare just as well (if not better) in arbitration. Are there "satisfied customers" and counsel who would come forward without compromising confidentiality? Is there a pitch that can be made to the NYT or other publications for an in-depth perspective?

Judge Gerald Harris:

The trend for many years has been for courts to recognize the value and advantages of arbitration and to pay greater deference to agreements to use an arbitral forum in lieu of litigation. This trend reversed a long held prejudice against arbitration by courts jealous and protective of their own jurisdiction. The New York Times seems to resent this turnabout and, for reasons about which we can only speculate, appears to be urging a return to the bad old days.

I became convinced that ADR was the way to go after representing an individual in the second trial of an age discrimination case. It was Murphy v. American Home Products and because of a series of appeals between the first and second trial, which I did, took ten years.
This was an age discrimination case. To wait ten years for a resolution made no sense. It was then that I started to look for a better option for my clients and found mediation and arbitration provided that. Now I am a full time neutral.

Edwin H. Stern:

The basic problem really is the fairness in the decision to select arbitration as the forum for settling disputes. Generally, an agreement should be enforced and this is particularly true when negotiated by parties with independent representation, but that is not the case with most employment agreements. The question is whether a non-negotiated agreement should be treated similarly. The bargaining positions are not usually equal when someone applies for the job, but if the agreement is clear, understandable, and explains what arbitration is and how it operates, it should be enforced with respect to big employers and small. Some courts go further and require express waivers of class actions or all court actions, or of the right to jury trial. But if the agreement is clear and objectively understandable to the person executing the agreement, and explains what arbitration is and how it operates, in my personal view it should generally be enforced.

Certainly there is a perception by some that because the employer has chosen the forum and the rules, and in essence, supports the arbitrating agency (and pays filing fees in employment cases), it is favored. But I truly believe most arbitrators, selected by the parties (at least where represented), are not partial in any way and undermines some of the concerns expressed by the Times and other articles. It would be helpful if there is a way to prove that is so, but unfortunately I know of no empirical evidence.

It would be helpful if the NY Times and media generally were educated as to how arbitrators are selected and how they become qualified to arbitrate (get on rosters). Moreover, the arbitration community should develop how much more quickly and inexpensively the dispute is generally resolved, which benefits the employee as well as the employer.

Finally, it seems to me that there may be a need to address the one concern about arbitration that I have difficulty answering. In many employment disputes, counsel fees can be recovered by a prevailing employee under a fee shifting statute, and that benefit results in employees being able to obtain counsel when representation is otherwise unavailable. That "evens the playing field" in the minds of many. I believe loss of that benefit should be addressed as a matter of policy. I would like to see if others are concerned about this subject and how they respond.

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

About

This page contains a single entry from the blog posted on May 16, 2016 9:21 AM.

The previous post in this blog was Early bird registration is now open for the 2016 ACR-GNY Annual Conference, set to take place on June 16, 2016 at Cardozo Law School.

The next post in this blog is Reasoned Award - What are your thoughts?.

Many more can be found on the main index page or by looking through the archives.