Is Arbitration the Answer?/Martin Rosenfeld, JD

Posted on November 25, 2017


The Time Magazine issue dated December 4, 2017 has a major piece on arbitration clauses in nursing home disputes. The analysis, written by Haley Sweetland Edwards, makes several interesting points that are not generally known. Arbitration costs are not always less costly than litigation costs. In some arbitration clauses, there is a stipulation concerning which arbitration firms may be used. Mandatory arbitration agreements are often buried in small print. There are no requirements to follow state or federal rules of procedure. Finally, conflict of interest can play a part in arbitrator conduct. Paul Bland, a director of Public Justice, indicates that arbitrators have an interest in keeping their repeat customers in a happy frame of mind. “…(Y)ou might have in the back of your mind the idea of making a favorable decision for the guy who’s going to hire you next.” Industries which require mandatory arbitration for disputes include mobile phone companies, credit card issuers, and student loan credit unions or banks.

Is arbitration a better choice than litigation? I believe it is. Is it a better option than mediation? How could it be? Mediate, don’t litigate and/or arbitrate.