It is difficult to know the practical implications of the broad delegation of dispute settlement by the courts to arbitration, as arbitration is private and arbitration decisions are generally not published. However, research suggests that consumers and employees are less likely to win their cases if they are tried in arbitration, and if they win, the amounts of damages are much smaller than would be the case in court. In addition, there is significant evidence that people who have suffered from business misconduct are discouraged from making their claims completely, as arbitration can be too expensive and the results too risky for individual consumers or employees. In particular, the ban on class actions makes it unlikely that many allegations of corporate misconduct – especially those involving small amounts of money for large groups of individuals – will ever be heard. As Justice Breyer said, “Only a madman or a fanatic sues for $30.” 68 Consumers have put forward effective justifications against arbitration in cases where it would be unwavering for them to settle their claims. As noted above, the Supreme Court has not been sensitive to these arguments. Employees presented effective justification arguments when arbitration combined with a class action ban would destroy their substantive rights to class action. What can be done to reverse these trends? Arbitration providers encourage their voluntary efforts to ensure that arbitration provides adequate protection against litigation and impartial decision-makers. While voluntary efforts by arbitration service providers and companies to improve due process in their arbitration proceedings are desirable, they do not address the fundamental issue that applicable arbitration law allows the company to decide on the type of arbitration to be imposed on its employees or customers. Voluntary action cannot prevent companies that want to protect their interests – at the expense of employees and customers – from introducing provisions such as class action waivers and wage clauses that prevent access to justice.
Nor can they adequately resist the biases of replay players. The companies that have introduced compulsory arbitration are usually those with larger workers. Adjusted for the number of employees, a total of 56.2% of the employees of the companies surveyed were subject to mandatory arbitration. Extrapolated to the entire non-unionized private sector workforce, this equates to 60.1 million U.S. workers who are now subject to mandatory labor arbitration and no longer have the right to go to court to challenge violations of their labor rights.8 4.9 U.S.C. § 3. To fall under the FAA, an agreement must include trade and include a written arbitration clause. 9 U.S.C§ 2. The greater flexibility and informality of arbitration in relation to court proceedings means that parties rely much more on the neutrality, expertise and fairness of the arbitrator to achieve a fair outcome. This can work well when two equal parties come together to draft an arbitration and choose an arbitrator they both trust. However, for consumers or employees who have to initiate a mandatory arbitration with a large company to purchase a product or service or obtain employment, removing these formal protections makes them vulnerable to unfair lawsuits and unfair outcomes. A number of international arbitration bodies provide standard arbitration clauses to the parties.
Examples: See related work on trade unions and labour standards | | the data presented above take into account only general differences in the results. It is reasonable to ask to what extent the mandatory gap between arbitration and the outcome of the dispute is due to factors such as the type of cases that reach the litigation stage. .