Business

Arbitration: Thy Name Is Judge

pO157.

Posted to Business on Mon Oct 29, 2007 at 08:40:42 AM EST (promoted by port1080). RSS.

If you have ever had a dispute with a credit card company or bank over money you probably think you can take your case to court and gain satisfaction. Unfortunately, that is not always the case.

Binding arbitration consists of two parties who take a business dispute to a disinterested third party (or parties) who agree to settle the claim. The arbitration industry has had legal foundation since 1925 when a law gave parties who agreed to it the ability to seek an alternative resolution to their disputes. This law, which was paid little attention except by Judges in The People's Court or other TV based legal shows, recently fueled a wave of interest in arbitration by companies with large numbers of accounts and a high amount of legal expenses in the courts. Businesses like arbitration because it saves them expensive legal fees and claim it reduces frivolous lawsuits. Now it is common for many boilerplate contracts in cell phones, credit cards, banks, auto dealers, and the like to include passages demanding both parties forgo all right to seek recourse in the civil courts and demand binding arbitration instead.

There has always been an objection to binding arbitration by consumer rights advocates. Most of it centers around the fact that consumers often must travel distances to settle their disputes, or pay money up front. In many cases, the arbitration can only be done through the mail giving the aggrieved party no time to meet the person or persons deciding the case. In addition, there is no public eye on the proceedings and decisions are rarely published. A recent study found that the overwhelming majority of arbitration cases are decided in favor of the lender or business, and never the consumer. Industry groups complain that this characterization is unfair as the vast majority of disputes are initiated by them over bad debts and the consumers likely would lose in a court of law anyway.

Some consumer advocates simply advocate crossing out arbitration language in standard boilerplate contracts and refusing to sign if the representative objects. However, this is legally questionable as most contracts have statements saying that they cannot be modified by local representatives and many people are unable to find the appropriate passages in technical documents.

At the federal level a bill was proposed by Senator Feingold to correct perceived problems with arbitration. It (pdf) would ban arbitration unless both parties have "equal power" within existing contracts, a move that could change the standard boilerplate legal document and stop this movement away from the civil courts.

Tags: edited by Port1080, written by pO157, Arbitration, Business, Law, Russ Feingold, Sen. Feingold, Binding Arbitration, Judge Reinhold, Arrested Development, Judge Wapner (all tags)

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1

Does this really save money in the long run?

pO157.

Mon Oct 29, 2007 at 09:41:55 AM EST

none

I was surprised to learn that the majority of arbitration cases are in regards to "deadbeat" clients. Until I researched this I thought the arbitration clause was primarily to force customers into avoiding civil courts. I did not imagine the companies would avoid making use of the legal system to save themselves a buck.

I do not understand why these companies would choose an arbitrator to try and get money from a client who has skipped on his obligations. Can an arbitrator attach assets? Freeze a bank account? Foreclose on a property? No. The only thing they would be good for is making official looking papers up to trick stupid people into thinking there is a valid court order saying they better pay Credit Card Company XYZ or go to debtor's prison. An intelligent customer (and this is a big assumption, I know) would know such a "court" finding is meaningless.

Personally, if I were these companies I would be spending my money on lawyers and going after the debtors in civil court. Sure they would get less than 100% of their money back, but at least the judgments would mean something and have force of law.

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Re: Does this really save money in the long run?

zyxwvutsr.

Mon Oct 29, 2007 at 12:31:59 PM EST

4.00 (informative)

There's another possibility, I think:

I'm not sure how common this is, but in New York state arbitration is mandatory before a case will be heard in small-claims court (anything less than $5000). If you sue someone in small-claims, you will get a date to appear before a judge, and the first thing he wants to know is whether you have already been to arbitration. If not, you'll be sent immediately to talk to an arbitrator, and you cannot go back before the judge unless and until that arbitrator issues a report saying that the case cannot be solved through arbitration. It could be that these creditors are merely helping the system along, and it's almost certainly a better practice to resolve some portion of the cases without getting a lawyer involved.

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arbitration hardly feeds your attorney scorn

thefadd.

Mon Oct 29, 2007 at 02:01:56 PM EST

4.00 (interesting)

Given that there's no way a major corporate entity would let anyone other than an attorney in their legal department handle something in arbitration that's a boldly disingenuous statement. No one should ever go to arbitration without an attorney, unless it's a small claims case, in which case I'd still have an attorney were I facing a corporate entity that will undoubtedly be represented by a lawyer.

It is easy to buy small plaster models of what you think life is like.

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Re: arbitration hardly feeds your attorney scorn

zyxwvutsr.

Tue Oct 30, 2007 at 10:31:35 PM EST

none

Given that there's no way a major corporate entity would let anyone other than an attorney in their legal department handle something in arbitration that's a boldly disingenuous statement
Don't be absurd. Why would a company pay a lawyer when they could pay a low-level manager at 1/10th the cost? Sure, the contracts, form letters, policies, and procedures are all crafted by attorneys, but once that's done it's a formulaic process that anyone can handle with a modicum of training.

Here's another example: a company I used to work for had a large unionized work force. From time to time a fired union member would challenge his termination, and the case would go before an arbitrator. The union would always send an attorney to represent the employee, but the company rarely did. (And when I say "rarely" I mean less than 5% of cases.)

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Re: arbitration hardly feeds your attorney scorn

ms sue.

Wed Oct 31, 2007 at 09:59:21 AM EST

5.00 (astute)

You're getting into a different type of arbitration altogether here. The topic refers to commercial arbitration, in which it can be argued that the two parties are not on equal footing. Whereas a large company may execute hundreds of proceedings in a year and has excellent legal representation, the consumer is probably involved for the first time.

Labor and employment arbitration is a totally different animal. The parties have both agreed to arbitration and do so because it is quicker and cheaper than litigation, to say nothing of the fact that the courts, as opposed to experienced labor arbitrators, have little expertise in this very complicated arena.

As far as who comes to the table with an attorney in labor-management cases, it really varies, probably from state to state. In California, both parties are usually represented, and companies almost always.  

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Re: arbitration hardly feeds your attorney scorn

zyxwvutsr.

Wed Oct 31, 2007 at 10:34:45 AM EST

none

You're getting into a different type of arbitration altogether here
Yes, I know. That's why I said "here's another example." Still, my point is valid, I think, because thefadd was suggesting that no one should go up against a corporation in an arbitration because the corporation would always use an attorney. I haven't got any direct experience in financial arbitration cases, so I rebutted with what I know for sure: companies will use the most efficient means to win a dispute - that may be using an attorney and it may be using a non-attorney specialist.

The parties have both agreed to arbitration and do so because it is quicker and cheaper than litigation...
That's exactly the same reason that parties agree to arbitration in, for example, credit card contracts. (The fact that few consumers even bother to read, much less object to, the fine print of their contracts is irrelevant to this point: they choose a credit card based on price, i.e., interest rate and fees.)

As far as who comes to the table with an attorney in labor-management cases, it really varies, probably from state to state. In California, both parties are usually represented, and companies almost always
The second case I mentioned above was in California, but there was a lawyer involved only because of the large amount of money in dispute. Simple arbitrations in California were handled by local managers, usually with no specific advice from a lawyer, or even the company's senior labor relations execs. One exception was workers' compensation cases, which were handled by a California law firm that specialized in that. (I'm sure your at least passingly familiar with how screwed up California's workers' compensation system is. In most states where we operated workers comp. rates were ~ 5% of direct labor costs, but in California the rate was in excess of 25%. It was a significant impediment to doing business there.)

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Re: arbitration hardly feeds your attorney scorn

ms sue.

Wed Oct 31, 2007 at 11:17:47 AM EST

none

The parties have both agreed to arbitration and do so because it is quicker and cheaper than litigation...

That's exactly the same reason that parties agree to arbitration in, for example, credit card contracts. (The fact that few consumers even bother to read, much less object to, the fine print of their contracts is irrelevant to this point: they choose a credit card based on price, i.e., interest rate and fees.)

The parties in a commercial arbitration do not AGREE in the same way that they do in union/management disputes. Regardless of the fine print, a consumer does not usually have the same resources or knowledge as does the company.

Simple arbitrations in California were handled by local managers, usually with no specific advice from a lawyer, or even the company's senior labor relations execs. One exception was workers' compensation cases

If they're union cases, only a scant few companies come to the table without legal representation. Workers' comp is a different area altogether.

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Genuinely curious.

pO157.

Wed Oct 31, 2007 at 06:17:24 AM EST

none

And what were the outcomes?

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Re: Genuinely curious.

zyxwvutsr.

Wed Oct 31, 2007 at 09:24:09 AM EST

4.00 (interesting)

And what were the outcomes?
The outcomes of the union arbitrations? Mixed. Sometimes the employee was plainly wrong and we had decent documentation of fair, progressive disciplinary actions, and the company won. Sometimes the employee was treated unfairly by the company (and, perhaps more to the point, counter to the collective bargaining agreement) and the employee won. Sometimes the employee was wrong, but we failed to properly document fair, progressive disciplinary actions, and the arbitrator split the difference. (Which usually meant the company made a cash offer to make the employee go away: e.g., we'd give the guy a month's pay if he signed a release of liability covering several possible avenues for future claims.)

If you meant the outcomes when a company attorney was involved, again, the outcomes were mixed. One example was when there was a union grievance lodged over a termination that occurred just after the employee had filed an EEOC complaint. The company didn't know about the EEOC complaint at the time of termination (the employee knew she was on thin ice because of performance/misconduct, and the EEOC complaint was a preemptive move on her part), but because there can be some serious repercussions if a company is believed to have fired someone because of an EEOC complaint, lawyers were brought in to make sure we had all our ducks in a row.

Another time where an attorney was involved was a major case where nearly 40 union workers had been laid off unjustifiably, at least under the terms of the collective bargaining agreement. It had been bouncing back and forth between the union and various levels of the company for over a year - by the time the CEO got involved the company was looking at the possibility of ~ $2 million in back pay. The outcome was offering most of the jobs back and settling for some lesser amount of back pay. Even though the company's general counsel was involved, the negotiation was handled mostly by the company's VP of labor relations. (The division president who hid the problem from the CEO was out the door shortly thereafter.)

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Suffice It To Say

thefadd.

Tue Nov 06, 2007 at 07:01:15 PM EST

none

Don't be absurd.

The company will be represented by an attorney or other suitably trained specialist who is experienced in the field.

It is easy to buy small plaster models of what you think life is like.

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Re: Suffice It To Say

zyxwvutsr.

Tue Nov 06, 2007 at 08:22:51 PM EST

none

That's a far cry from "there's no way a major corporate entity would let anyone other than an attorney in their legal department handle something in arbitration." So, you know...welcome back to common sense.

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Re: Suffice It To Say

thefadd.

Tue Nov 06, 2007 at 08:44:49 PM EST

none

That functionary who is a "suitably trained specialist who is experienced in the field" is overseen in their actions and must answer to a corporate counsel. They have that counsel to call on should any out of the ordinary questions arise. That's a far cry from trying to establish that people don't need attorneys when facing major corporations just because the person who shows up in small claims court to represent said company may or may not actually have a law degree.

It is easy to buy small plaster models of what you think life is like.

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Re: Does this really save money in the long run?

pO157.

Tue Oct 30, 2007 at 06:19:58 AM EST

none

I am not a lawyer, and I could believe this, it's just that I live in NYS and I have never heard of this happening. I also know a few people who have gotten sued in Small Claims and they never mentioned having to go to arbitration. I can't really find an arbitration clause in the Uniform Justice Court Code (the courts in small towns and cities that decide minor crimes like traffic tickets, misdemeanors and small civil claims), just the below which seems to indicate that it may not be mandatory. Could what you are describing be a local rule of a few judges?

 § 206. Arbitration.
   (a) No matter required to be decided by the court shall be referred to
  any  arbitrator,  referee, advisory jury, or any other person or entity,
  except as provided by the rules pursuant to subdivision (c).

    (b) CPLR article 75, relating to arbitrability and arbitration,  shall
  not  be  applicable  in  the  court.  If  it appears to the court that a
  genuine issue exists as to the arbitrability of the matter for which the
  action has been brought, the court shall  stay  the  action  until  such
  issue has been resolved by a court of competent jurisdiction.
   (c)  The  rules may provide systems of arbitration and conciliation of
  claims within the courts jurisdiction without reference to CPLR  article
  75.

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Re: Does this really save money in the long run?

zyxwvutsr.

Tue Oct 30, 2007 at 10:35:46 PM EST

4.00 (interesting)

Could be that it's done on a district-by-district basis. I handled two small-claims cases for my employer, and both were in Nassau county court. On both occasions the bailiff announced the policy prior to the beginning of court, and the judge asked the court clerk about arbitration as each case was called.

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Re: Does this really save money in the long run?

port1080.

Mon Oct 29, 2007 at 10:44:18 AM EST

none

Personally, if I were these companies I would be spending my money on lawyers and going after the debtors in civil court

I don't think that they really want to do that if they can possibly avoid it. My understanding with these types of debt cases is that companies usually throw a lot of bluster at you and do everything they can to make it look like they're coming after you, but they won't do it themselves. Any real action to collect against you would cost money, and they don't want to spend that money if they don't have to, because they know most people will pay eventually, and those that won't pay eventually probably can't pay anyway. They'll give the debt six or eight months, sending you increasingly nasty notices (this would be where those arbitration judgments come, probably), but otherwise don't do anything, because they want you to pay on your own. This is why if you make an honest effort to pay your bills (even if you're not making all the payments every month) companies won't take legal action - they know they have a better chance of getting the money if they just wait it out than if they try to force the issue.

Now, if you are a habitual deadbeat and haven't paid anything for four or five months, with no sign of contact, then they'll write the debt off and sell your account (for pennies on the dollar owed, usually) to a collection agency. This gives them some cash up front, and the ability to firmly write off what you owed as a loss. At this point the primary company (be it a phone company, appliance store, whatever) is done with you, but now you've got to deal with the collection agency, and they're going to do all the nasty (and much more legally enforceable) stuff like filing lawsuits, getting wage garnishments, etc, etc., because that's their primary business, and if they don't collect they don't get paid. It's a whole different ballgame when you move on to that stage.

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