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Thread: Regarding arbitration clauses in financial contracts

  1. #41
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    Quote Originally Posted by NightSwimmer View Post
    I personally have no problem with the concept of arbitration. If people choose to resolve their differences through arbitration, then that's fine by me. It is businesses serving the general public who collaborate to force people to waive their legal rights that bothers me. I support the regulations banning this practice for financial institutions.
    If its used as a 'sword' and not a 'shield' ie they are using the provision to frustrate justice, then I agree, but in the grand scheme of things, you're simply trading going to court, a costly, lengthy, inefficient process for arbitration, a much cheaper, shorter and efficient process. Alternative dispute resolution exists because going to court basically sucks. Many people experience frustrated justice for small-mid sized claims simply because they cannot assert the claim economically, ie cases where attorneys ask for 5k retainers expecting year+ long litigation complete with discovery, depositions, etc. Put a mandatory arbitration clause in there and all of a sudden I would be much more interested in the case.
    Last edited by publius3; 21st July 2017 at 07:56 AM.
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  2. #42
    Veteran Member Southern Dad's Avatar
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    Do you know who really hates arbitration? Attorneys! They bill by the hour, sitting all day in the courthouse waiting for the calendar calls, motions, and eventual civil trial? A gold mine.

  3. #43
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    Quote Originally Posted by publius3 View Post
    If its used as a 'sword' and not a 'shield' ie they are using the provision to frustrate justice, then I agree, but in the grand scheme of things, you're simply trading going to court, a costly, lengthy, inefficient process for arbitration, a much cheaper, shorter and efficient process. Alternative dispute resolution exists because going to court basically sucks. Many people experience frustrated justice for small-mid sized claims simply because they cannot assert the claim economically, ie cases where attorneys ask for 5k retainers expecting year+ long litigation complete with discovery, depositions, etc. Put a mandatory arbitration clause in there and all of a sudden I would be much more interested in the case.
    If that is necessarily the dichotomy, I agree there could be efficiencies to arbitration as alternatives to litigation. But my (albeit limited) experience with arbitration concerns public sector collective bargaining (interest arbitration), which under no circumstance whatsoever is binding on the elected body that decides whether to approve and fund the arbitrator's award or not.

    Further, interest arbitration is almost always decided based on examination of wage and benefit comparability. That requires simple economic analysis, not legal jurisdiction. So why does statute mandate arbitration of collective bargaining disputes, despite it being ultimately non-binding? And why do labor unions want every dispute put before an arbitrator?

    Basically my experience with arbitration informs me some entities use it as a self-serving political tool, not as an honest mechanism for reducing inefficient litigation.

  4. #44
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    Well if its non-binding, typically its called mediation. As for unions wanting mediation/arbitration, the real impetus there is that courts have a de facto threshhold to be useful, below which its cheaper just to tolerate the malfeasance.

  5. #45
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    Quote Originally Posted by publius3 View Post
    Well if its non-binding, typically its called mediation.
    It should be called mediation! Why isn't it? Because the word arbitration fosters the illusion that the outcome of public sector collective bargaining can be decided by a judge. In reality, the outcome of public sector collective bargaining can only be decided by the elected body.

    And given that a third to a half of all state and municipal government nationwide is unionized, I would say this is a fairly important issue.

    As for unions wanting mediation/arbitration, the real impetus there is that courts have a de facto threshhold to be useful, below which its cheaper just to tolerate the malfeasance.
    I don't think collective bargaining disputes have (or should have) any potential to end up in court, ever. If a union doesn't get what it wants in wages and benefits from an elected body or government management, why should a court ever have to hear about that? I don't think subjectively wanting more money should entitle anyone to litigation over it.
    Last edited by Neomalthusian; 21st July 2017 at 09:42 AM.

  6. #46
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    Quote Originally Posted by Southern Dad View Post
    Do you know who really hates arbitration? Attorneys! They bill by the hour, sitting all day in the courthouse waiting for the calendar calls, motions, and eventual civil trial? A gold mine.
    Most of those civil trials are on a contingency basis, with no hourly billing. No win, no fees. And it is rare an attorney would take the case if there was not likely to be any money in it - we cannot work for free, after all, much as that may anger some people.

  7. #47
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    There is a difference between arbitration and mediation. The former involves a private person acting in the capacity as a judge (and with more flexibility in the rules of evidence) in a case, whose task it is to resolve the dispute irrespective of any agreement between the parties. The latter involves a neutral third party aiding the parties in coming to an agreement.

  8. #48
    Veteran Member Southern Dad's Avatar
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    Quote Originally Posted by Ian Jeffrey View Post
    Most of those civil trials are on a contingency basis, with no hourly billing. No win, no fees. And it is rare an attorney would take the case if there was not likely to be any money in it - we cannot work for free, after all, much as that may anger some people.
    Not quite. The plaintiff's attorney's may be on a contingency basis but the respondent is not. They are paying attorney fees.

  9. #49
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    Quote Originally Posted by Southern Dad View Post
    Not quite. The plaintiff's attorney's may be on a contingency basis but the respondent is not. They are paying attorney fees.
    True, I was referring to plaintiffs' attorneys.

    But the defendants' attorney fees are only relevant to demonstrate that mandatory arbitration clauses wherein prospective plaintiffs surrender their rights to sue are made in order to rig the game in favor of the prospective defendants, and to deny the prospective plaintiffs any real access to justice.
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  10. #50
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    Quote Originally Posted by Neomalthusian View Post
    Same here. If the parties mutually agree to arbitration, and the terms by which it will be conducted, no problem.

    That's why my state's statutes (23.40) piss me off. The statute entitles certain entities to arbitration that want everything to go to arbitration.



    I share your sentiment, and include other types of organizations in that they too shouldn't be able to coerce anyone into arbitration, and state and federal laws shouldn't help them coerce.
    I wholeheartedly agree. I don't think that car dealers should be allowed to make this a universal clause in their sales contracts. There are good reasons for some market regulations. They exist to protect the constitutional rights of the citizens. I guess one doesn't need such protections, if one can afford to hire attorneys to guarantee that one's rights are respected.

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