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Arbitration comes from agreements on how to settle future disputes being legal [1]. If two company agree to settle through a chess match between their CEOs inst

by dtech 8y ago

Arbitration comes from agreements on how to settle future disputes being legal [1]. If two company agree to settle through a chess match between their CEOs instead of suing, by all means let them. This is obviously problematic in cases where there is a significant power discrepancy (employee-employer, producer-consumer etc), or where arbitrators are paid by a single party. Despite this, US suspreme court has held that they are still valid [2] [1] https://en.wikipedia.org/wiki/Federal_Arbitration_Act https://en.wikipedia.org/wiki/Federal_Arbitration_Act [2] https://en.wikipedia.org/wiki/Epic_Systems_Corp._v._Lewis https://en.wikipedia.org/wiki/Epic_Systems_Corp._v._Lewis

sand500 8y ago
Sure but let anyone do voluntary arbitration not forced.
- whiddershins 8y ago
  It’s voluntary whether or not to agree ahead of time to be bound by a conflict resolution method should such conflict arise in the future.
- anth_anm 8y ago
  If two companies of comparable size want to agree to arbitrate any disputes in a contact, that should be allowed. It saves massive amounts of time and money. The problem is the disparity between the parties involved when it's a company and an individual. Forced arbitration also bans class action lawsuits, which weakens individuals even further.
  - CharlesColeman 8y ago
    I think forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent). I think those conditions would effectively exclude it from consumer contracts while permitting it when both parties understand and want it.
    - vageli 8y ago
      > I think forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent). That may have the unintended side effect of employers including _even more_ onerous impositions which they anticipate will be negotiated away, making the negotiation "active" as far as the parties are concerned but with the same outcome. If it were entirely optional, what employee _would_ opt in to forced arbitration? Thinking more about it, I would imagine employers would offer small incentives in exchange for the forced arbitration clause (like more paid time off, etc) but at least in that case it would be a trade-off made by the employee.
    - bradleyjg 8y ago
      > and where agreeing to it was entirely optional for either party That’s really the crux of it, isn’t it? In general it is entirely common in a contract situation for one party to care so much about a particular provision that it would rather not contract at all than contract without that provision. Generally the better the best alternative to a negotiatied agreement (BANTA) for a party the more likely it is to be willing to walk away over a particular provision. I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. In a Dunbar size world, maybe it isn’t. But you can’t run a company with 100k individually negotiatied employment contracts.
      - CharlesColeman 8y ago
        > I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. I think the root of the perceived unfairness is that forced arbitration concerns using a power disparity to force renunciation by default of fundamental political rights (access to the court system) to the benefit of the powerful party. The take it or leave it attitude is fine, but only when the parties are on fairly equal footing.
        bradleyjg 8y ago
  - Terr_ 8y ago
    > Forced arbitration also bans class action lawsuits For me this is the biggest key issue, because it's an attempt to nullify the higher-level mechanism which ought to be preventing abuse.
ryandrake 8y ago
I'd argue any contract is problematic if there is both a significant power discrepancy between the parties, and the terms are non-negotiable (take it or leave it). When I think of the word "contract" I don't picture two companies with a meeting of the minds, on equal footing, settling something. Instead I associate the word with a hammer that a powerful company uses to smash a relatively powerless individual--because that's the only kind of contract 99% of us will ever be party to.
- drdeca 8y ago
  Technically verbal contracts, like when one pays someone to cut one’s hair, are contracts, I think?

by dtech 8y ago

sand500 8y ago

Sure but let anyone do voluntary arbitration not forced.

whiddershins 8y ago
It’s voluntary whether or not to agree ahead of time to be bound by a conflict resolution method should such conflict arise in the future.
anth_anm 8y ago
If two companies of comparable size want to agree to arbitrate any disputes in a contact, that should be allowed. It saves massive amounts of time and money. The problem is the disparity between the parties involved when it's a company and an individual. Forced arbitration also bans class action lawsuits, which weakens individuals even further.
- CharlesColeman 8y ago
  I think forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent). I think those conditions would effectively exclude it from consumer contracts while permitting it when both parties understand and want it.
  - vageli 8y ago
    > I think forced arbitration should only be legal in actively negotiated contracts (i.e. both parties were active in writing and modifying all the terms), where the proposing party disclosed the implications in plain language, and where agreeing to it was entirely optional for either party (sort of like GDPR consent). That may have the unintended side effect of employers including _even more_ onerous impositions which they anticipate will be negotiated away, making the negotiation "active" as far as the parties are concerned but with the same outcome. If it were entirely optional, what employee _would_ opt in to forced arbitration? Thinking more about it, I would imagine employers would offer small incentives in exchange for the forced arbitration clause (like more paid time off, etc) but at least in that case it would be a trade-off made by the employee.
  - bradleyjg 8y ago
    > and where agreeing to it was entirely optional for either party That’s really the crux of it, isn’t it? In general it is entirely common in a contract situation for one party to care so much about a particular provision that it would rather not contract at all than contract without that provision. Generally the better the best alternative to a negotiatied agreement (BANTA) for a party the more likely it is to be willing to walk away over a particular provision. I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. In a Dunbar size world, maybe it isn’t. But you can’t run a company with 100k individually negotiatied employment contracts.
    - CharlesColeman 8y ago
      > I think the root of the perceived unfairness here is that people think a take it or leave it attitude is not fair. I think the root of the perceived unfairness is that forced arbitration concerns using a power disparity to force renunciation by default of fundamental political rights (access to the court system) to the benefit of the powerful party. The take it or leave it attitude is fine, but only when the parties are on fairly equal footing.
      - bradleyjg 8y ago
- Terr_ 8y ago
  > Forced arbitration also bans class action lawsuits For me this is the biggest key issue, because it's an attempt to nullify the higher-level mechanism which ought to be preventing abuse.

ryandrake 8y ago

I'd argue any contract is problematic if there is both a significant power discrepancy between the parties, and the terms are non-negotiable (take it or leave it). When I think of the word "contract" I don't picture two companies with a meeting of the minds, on equal footing, settling something. Instead I associate the word with a hammer that a powerful company uses to smash a relatively powerless individual--because that's the only kind of contract 99% of us will ever be party to.

drdeca 8y ago
Technically verbal contracts, like when one pays someone to cut one’s hair, are contracts, I think?