Comments on: Man Bites Dog: Employment Arbitration Takes a Bashing http://businessconflictmanagement.com/blog/2009/12/man-bites-dog-employment-arbitration-takes-a-bashing/ Conflict Management Expertise from F. Peter Phillips Mon, 21 May 2012 21:27:49 +0000 http://wordpress.org/?v=2.7.1 hourly 1 By: Joe Markowitz http://businessconflictmanagement.com/blog/2009/12/man-bites-dog-employment-arbitration-takes-a-bashing/comment-page-1/#comment-896 Joe Markowitz Wed, 23 Dec 2009 02:07:27 +0000 http://businessconflictmanagement.com/blog/?p=412#comment-896 If it went that far, I would agree it would be going too far. I think the language only forbids contractors from entering into employment contracts that mandate "as a condition of employment," arbitration of discrimination or assault claims, etc. I'm not sure that would prevent a party who has already filed a discrimination charge or lawsuit from agreeing to arbitrate that claim, just as a party who files a lawsuit can always enter into a settlement agreement, or enter into a mediation agreement, or even agree to a roll of the dice to resolve a litigated dispute. If it went that far, I would agree it would be going too far. I think the language only forbids contractors from entering into employment contracts that mandate “as a condition of employment,” arbitration of discrimination or assault claims, etc. I’m not sure that would prevent a party who has already filed a discrimination charge or lawsuit from agreeing to arbitrate that claim, just as a party who files a lawsuit can always enter into a settlement agreement, or enter into a mediation agreement, or even agree to a roll of the dice to resolve a litigated dispute.

]]> By: F. Peter Phillips http://businessconflictmanagement.com/blog/2009/12/man-bites-dog-employment-arbitration-takes-a-bashing/comment-page-1/#comment-895 F. Peter Phillips Wed, 23 Dec 2009 01:52:35 +0000 http://businessconflictmanagement.com/blog/?p=412#comment-895 Thanks for your comment. As I read the statute, it does not permit arbitration of the covered claims, whether pre-dispute or post-dispute. They must "agree not to enter into" arbitration agreements. Period. Thanks for your comment. As I read the statute, it does not permit arbitration of the covered claims, whether pre-dispute or post-dispute. They must “agree not to enter into” arbitration agreements. Period.

]]> By: Joe Markowitz http://businessconflictmanagement.com/blog/2009/12/man-bites-dog-employment-arbitration-takes-a-bashing/comment-page-1/#comment-894 Joe Markowitz Wed, 23 Dec 2009 01:34:05 +0000 http://businessconflictmanagement.com/blog/?p=412#comment-894 My theory is that the US Supreme Court went too far in upholding the enforceability of mandatory pre-dispute arbitration clauses. (In contrast to the approach of the state courts in California for example) And as a result of the inevitable backlash against the perceived harshness of this approach, Congress is on its way to eliminating pre-dispute arbitration clauses in most consumer and employment situations. Take that, Supreme Court! As you say, perhaps this is throwing the baby out with the bathwater. To my mind, though, we are not eliminating arbitration, only the non-knowing waiver of the consumer's right to jury trial. People can always agree to arbitrate after a dispute arises if they really feel that arbitration is in both parties' best interest. And in the new era, maybe companies should be encouraging mediation prior to litigation or arbitration, which does not require anyone to waive anything. http://www.jcmarkowitz.com/2009/10/hard-cases-create-hard-times-for.html My theory is that the US Supreme Court went too far in upholding the enforceability of mandatory pre-dispute arbitration clauses. (In contrast to the approach of the state courts in California for example) And as a result of the inevitable backlash against the perceived harshness of this approach, Congress is on its way to eliminating pre-dispute arbitration clauses in most consumer and employment situations. Take that, Supreme Court! As you say, perhaps this is throwing the baby out with the bathwater. To my mind, though, we are not eliminating arbitration, only the non-knowing waiver of the consumer’s right to jury trial. People can always agree to arbitrate after a dispute arises if they really feel that arbitration is in both parties’ best interest. And in the new era, maybe companies should be encouraging mediation prior to litigation or arbitration, which does not require anyone to waive anything.

http://www.jcmarkowitz.com/2009/10/hard-cases-create-hard-times-for.html

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