Negotiation Law Blog - The Continuing Perils of (Potentially) Uneforceable Arbitration Agreements - Comments http://www.negotiationlawblog.com/ Southern California Arbitration Mediation & Conflict Resolution: Settle it Now Dispute Resolution Services: Serving Los Angeles, Beverly Hills, Century City en Copyright 2012 Fri, 23 Mar 2012 01:00:42 -0800 Fri, 23 Mar 2012 01:00:42 -0800 http://www.sixapart.com/movabletype/?v=4.32-en http://blogs.law.harvard.edu/tech/rss Joe Markowitz Lawyers will of course be interested in the question of how do you draft an enforceable arbitration clause. But I think the more interesting question is how do you justify pre-dispute arbitration clauses, especially in consumer cases, in the first place. You cannot justify them by arguing for all the supposed benefits of arbitration (speed, efficiency, etc.), because if both parties really buy into all of those benefits, they can always agree to arbitrate after a dispute arises. You can only justify pre-dispute arbitration clauses because they lower costs for business, and thereby may benefit consumers in the form of lower prices. Of course that benefit does not accrue to the consumers who actually get into a dispute. Those consumers are almost always better off if they do not waive their rights in advance. I wrote an article about this in the newsletter for the American Bar Association Committee on Alternative Dispute Resolution for Spring 2008, a shorter version of which appeared on my law firm blog (http://www.jcmarkowitz.com/2007_12_01_archive.html). I also got the Sixth District to strike down an arbitration clause as unconscionable in Abramson v. Juniper Networs. (http://findarticles.com/p/articles/mi_pwwi/is_20050229/ai_mark979978371/)

]]> http://www.negotiationlawblog.com/arbitration/the-continuing-perils-of-potentially-uneforceable-arbitration-agreements/#22577 http://www.negotiationlawblog.com/arbitration/the-continuing-perils-of-potentially-uneforceable-arbitration-agreements/#22577 Arbitration Wed, 02 Sep 2009 13:39:27 -0800 Victoria Pynchon Vickie Pynchon Joe,

Thanks for dropping by and congratulations on your victory. I do in fact agree with you in everything you say about consumer arbitration agreements. I am a strong believer in the right of access to the Courts and find it distressing that the "little people" are being shuttled into arbitration proceedings (primarily presided over by old white men & some old white women like me) at a time when the Bench has been diversified so that it is representative of both genders and most American cultures and nationalities. There are people who see this as both diabolical and as undermining the Constitutional right to a jury trial by "the people" rather than by a certain segment of the society who live and work at the top of the social and political system and who are often blind to their own biases (and I do include myself among those people). Thanks for dropping by to take the conversation to a much deeper level than I was.

]]> http://www.negotiationlawblog.com/arbitration/the-continuing-perils-of-potentially-uneforceable-arbitration-agreements/#22578 http://www.negotiationlawblog.com/arbitration/the-continuing-perils-of-potentially-uneforceable-arbitration-agreements/#22578 Arbitration Wed, 02 Sep 2009 13:39:27 -0800 Victoria Pynchon