Monday, October 7, 2019
When I was a number of years into my law practice, Skadden, Arps, Slate, Meager & Flom LLP, the firm at which I worked, asked me to sign a mandatory arbitration agreement. Signing was voluntary, but the course of conduct indicated that it was strongly suggested. I thought about it and declined to sign.
It was hard for me to imagine bringing a legal claim against my law firm employer. I knew that if I were to sue Skadden, the matter would have to be very big and very serious--a claim for a harm that I would not want compensated through a "compromise recovery," which I understood could be a likely result in arbitration. I also was concerned about the lack of precedential value of an arbitration award for that kind of significant claim--permitting systemic bad employer behavior to be swept under the rug. And finally, I understood and respected the litigation expertise and experience of my colleagues in the firm and their connections to those outside the firm--expertise, experience, and connections that I believed would be more likely to impact negatively the opportunity for success on the merits of my claim in an arbitral setting.
I watched with interest as arbitration clauses caught on in this context, becoming (in many firms) a condition of employment. Other BLPB editors have written about mandatory arbitration in the employment law context in this space in the past, including Ann Lipton here and Marcia Narine Weldon here. The issue also has been raised by other bloggers and in the news media. I remember stories about summer associate mandatory arbitration classes, for example. (See, e.g., here and here from 2018.)
I recently read this article from The American Lawyer, which describes a trend away from these mandatory arbitration clauses in law firm employment. What goes around comes around . . . . I was especially interested to read that some firms are dispensing with the practice because employees/prospective employees disfavor these agreements. I also noted the article's description of key substantive arguments against mandatory arbitration: "[T]he clauses are unfair to workers and can allow large law firms to conceal accusations of racism, sexual harassment and assault." This is consistent with my own reasoning. Moreover, I admit that, as I was contemplating whether to sign Skadden's arbitration clause, sexual misconduct was among the big and very serious claims I determined that I would want to pursue in court--for remedy-related and public disclosure reasons.
Although the firm's leadership may have disapproved of my refusal to sign that agreement way back when, I still think I made the right decision--at least for me. If arbitration is mutually beneficial, one would hope that both parties would recognize that at the outset of their relationship or at the time a dispute arises. Otherwise, power imbalances tend to dominate in this space. Dispute resolution situations also may involve emotional and psychological factors that can impact judgment and strategy. Regardless, I am a "preserve as many options as possible" kind of gal. As a result, taking a position that maintains my rights to sue or participate in a class action claim seems natural and appropriate. I will hold onto those rights, if I can.