Creeping Mandatory Arbitration: Is it Just?

Abstract

This Article examines the phenomenon of mandatory binding arbitration, imposed on consumers and employees, and considers whether this type of dispute resolution serves or instead undermines justice. It is fairly easy to attack binding arbitration as unfair, for example pointing to the fact that it undermines rights to jury trial and to proceed in class actions. However, this Article seeks to examine the phenomenon of mandatory binding arbitration from a broader perspective, recognizing that it is inappropriate to assume that justice requires our existing system of litigation, with its class actions and jury trial. The Article concludes that while informal private processes such as arbitration are not inherently unjust, mandatory binding arbitration is problematic for two fundamental reasons. First it is highly problematic to permit the most powerful actors in a society to craft a dispute resolution system that is best for them but not necessarily their opponents or the public at large. Second, principles of justice require that disputants have access to a dispute resolution process that is transparent and open to public scrutiny. While disputants may, in particular situations, chose private processes, it would be improper for a society to establish entirely private dispute resolution processes.

Keywords: mandatory arbitration, arbitration, justice