A Company That Can’t Make Up Its Mind

I’m a consumer doing business with a company that can’t seem to make up its mind what the right approach is to handling disputes with its customers.

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Consumer Arbitration in Context

The publication by the New York Times of a series of highly-critical front-page articles on arbitration of consumer and employment disputes has stirred the pot among practitioners, academics, and others with a stake in Alternative Dispute Resolution.  The reportage was flawed, as some in our community were quick to point out.  Data took a back seat to anecdotes; perspectives of individual “victims” were given more ink than perspectives of companies; and the reporters failed to note that the Times itself engages in the very practice that the stories condemn — requiring purchasers of “Times Journeys” to waive both the right to sue and the opportunity to seek collective redress.

The practice of class action waivers in arbitration contracts of adhesion has been the subject of several recent Supreme Court rulings and, while perhaps novel to some Times readers, ought to be familiar to readers of this and other blogs.  Nevertheless, two of the many strands emerging from the froo-frah that has accompanied this publication have struck me as worthy of particular note.  One strand places the development of consumer arbitration class action waiver in the context of the dysfunctional American judicial dispute resolution system, suggesting that the practice did not arise spontaneously from the thigh of Zeus, but rather  is a response to — and an indicator of — much deeper problems that bedevil civil justice in this country.  The other strand prompts a dispassionate assessment of collective redress itself, questioning whether the practice of initiating a civil action on behalf of oneself and “others similarly situated” — whether in court or elsewhere — is in fact an exercise reasonably calculated to serve the goal of social justice.

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New AAA Foundation

The American Arbitration Association has announced the establishment of the AAA-ICDR Foundation.  This development is a welcome enlargement of the already pervasive and salutary role and influence of this esteemed institution and its international affiliate, the ICDR.

In a recent press release, the AAA explains that the Foundation is a 501(c)(3) not-for-profit organization, and is able to solicit donations and provide grants to fund a range of worthy causes that promote the Foundation’s wide-reaching mission, which is to support the use and improvement of dispute resolution processes in the USA and internationally. Read more »

Breaking News From NJ: Contracts Require Consent

A colleague has brought to our attention the October 26, 2015 opinion of the Superior Court of New Jersey Appellate Division in Barr v. Bishop Rosen & Co., Inc., which affirmed the denial of a motion to arbitrate on the ground that the arbitration agreement gave an employee insufficient notice that agreeing to arbitration meant waiving the right to sue. Read more »

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