ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, March 19, 2012

Objections to NYT Arbitration Fairness Op-Ed

We previously linked to an op-ed by Amanda Kessler in support of the Arbitration Fairness Act.  Yesterday's NYT contained three letters in response.

One respone from attorney Steven B. Borris objected to the op-ed, providing in part: Boris-profile

Professor Kessler writes that “arbitration awards do not need to be based on the law” and that “arbitrators have their own procedures.” To the contrary, the current federal statute — and the many state ones modeled on it — provides that an arbitration award may be overturned for a variety of reasons, including evident partiality, corruption and misconduct by the arbitrators.

The vast majority of consumer and employment-related arbitrations are administered through independent companies, such as the nonprofit American Arbitration Association. These neutral companies recruit and train experienced attorneys and former judges to sit as arbitrators. We neutrals are beholden to no one. These companies provide a barrier between consumers and the corporations inserting arbitration clauses in their consumer contracts

Prof. Theodore J. St. Antoine (Michigan) wrote that Kessler made some "good points" but "oversimplifies a complex problem."  He wrote:

For example, several reputable studies indicate that employees generally do at least as well in arbitration as in court. Even more important, many low-income employees who have been fired unfairly simply cannot afford a lawyer to take their case to court. Arbitration, cheaper and less formal, is their most realistic recourse.

The solution is not the outright prohibition of all pre-dispute agreements to arbitrate, as proposed by the ill-advised Arbitration Fairness Act. It is legislation that would guarantee due process in arbitration, including neutral arbitrators, and ensure that grievants have a voice in their selection and all the remedies that could have been obtained in court.

Dkreindler3Finally, Donald L. Kreindler, a lawyer specializing in arbitration, took "strong objection" to the op-ed, disagreeing with claims that arbitration is too costly and that arbitrators are sytematically biased.

Read the responses in full here.

[Meredith R. Miller]

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Prof. Theodore J. St. Antoine says arbitration is cheaper? Has he ever actually practiced law?

Posted by: MSK | Mar 20, 2012 5:10:35 AM

Posted by: Zev Eigen | Mar 22, 2012 7:08:42 AM