5 ms·

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. T

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
      The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally. Instead the crux then seems to be "fundamental political rights". I guess I don't see it that way. When you go into court to sue the government, or even in tort against a private party, sure. But in a contractual relationship the right and reason to go to court flows directly from the contract. The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. (I should note as a matter of rhetorical fairness that the New Deal Court discarded the notion of "liberty of contract", but as a political philosophy matter I still think it is crystallizes an important notion of freedom.)
      - CharlesColeman 8y ago
        > The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally. I didn't specific it earlier, but I think restrictions on binding arbitration would also extend to contractural prohibitions on class action lawsuits, since the two typically go hand in hand. It doesn't eliminate the power disparity, but eliminates new mechanisms that are used to increase it as well as protecting the mechanisms that have traditionally been used to protect against it. > The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. I disagree, there are other rights that are at least as important that must be balanced against that. Also "terms they agree to" is a slippery concept, and it's arguable it doesn't apply to 99% of the contracts "agreed to" today (think click-throughs and other walls of tiny text, which are typically neither actively negotiated, read, nor fully understood by one party as an essential matter of practicality).
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.

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
    The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally. Instead the crux then seems to be "fundamental political rights". I guess I don't see it that way. When you go into court to sue the government, or even in tort against a private party, sure. But in a contractual relationship the right and reason to go to court flows directly from the contract. The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. (I should note as a matter of rhetorical fairness that the New Deal Court discarded the notion of "liberty of contract", but as a political philosophy matter I still think it is crystallizes an important notion of freedom.)
    - CharlesColeman 8y ago
      > The power disparity remains whether or not we restrict arbitration. If isn't take it or leave it on that, it'd be take it or leave it on salary or vacation days or whatever else. I don't see how tweaking one, in the grand scheme of things, small available contractual term is doing anything about power imbalances generally. I didn't specific it earlier, but I think restrictions on binding arbitration would also extend to contractural prohibitions on class action lawsuits, since the two typically go hand in hand. It doesn't eliminate the power disparity, but eliminates new mechanisms that are used to increase it as well as protecting the mechanisms that have traditionally been used to protect against it. > The fundamental right here is the parties' ability to form an enforceable agreement under terms they agree to. I disagree, there are other rights that are at least as important that must be balanced against that. Also "terms they agree to" is a slippery concept, and it's arguable it doesn't apply to 99% of the contracts "agreed to" today (think click-throughs and other walls of tiny text, which are typically neither actively negotiated, read, nor fully understood by one party as an essential matter of practicality).

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.