Tuesday, June 10, 2008
Finally, Business Week's cover story, Banks v. Consumers (Guess Who Wins), brings a mainstream press indictment of the big business of The National Arbitration Forum (NAF), and the not-so-mysterious fact that consumers lose these cases more than 90% of the time. The article echoes what some contract scholars have been saying for years about the lack of consent to arbitrate. The article begins:
What if a judge solicited cases from big corporations by offering them a business-friendly venue in which to pursue consumers who are behind on their bills? What if the judge tried to make this pitch more appealing by teaming up with the corporations' outside lawyers? And what if the same corporations helped pay the judge's salary?
It would, of course, amount to a conflict of interest and cast doubt on the fairness of proceedings before the judge.
Yet that's essentially how one of the country's largest private arbitration firms operates. The National Arbitration Forum (NAF), a for-profit company based in Minneapolis, specializes in resolving claims by banks, credit-card companies, and major retailers that contend consumers owe them money. Often without knowing it, individuals agree in the fine print of their credit-card applications to arbitrate any disputes over bills rather than have the cases go to court. What consumers also don't know is that NAF, which dominates credit-card arbitration, operates a system in which it is exceedingly difficult for individuals to prevail.
[emphasis added]. The article continues:
An arbitration company collaborating with law firms to land business troubles some legal scholars. "Most people would be shocked," says Jean Sternlight, an arbitration expert at the University of Nevada, Las Vegas. "Our adversarial system has this idea built into it that the judge is supposed to be neutral, and NAF claims that it is," she adds. "But this certainly creates a great appearance, at a minimum, of impropriety, where the purportedly neutral entity is working closely with one of the adversaries to develop its business."
The only criticism I have of the article is that it doesn't mention any solutions -- in particular, The Arbitration Fairness Act, which would ban pre-dispute agreements to arbitrate in the consumer, franchise and employment contexts.
[Meredith R. Miller]