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Q: What about opposition to contractual pre-dispute arbitration?
A: Different groups may have different reasons for opposing pre-dispute arbitration, ranging from unfamiliarity with the process and contemporary arbitration agreements to misperceptions about constitutional rights and liberties.

Misperceptions about losing rights - Some interest groups have expressed concern that pre-dispute arbitration agreements take away consumers’ rights to a trial by jury. The FORUM is committed to following the law and upholding the United States Constitution, and we believe that the right to a trial by jury for those who elect to resolve their dispute in court is a vital component of the United States judicial system. The right to a trial by jury, however, applies to parties who elect to resolve their dispute in court. FORUM arbitration neither grants nor takes away this constitutional right; rather, the FORUM assists parties to exercise their contractual right to arbitrate. Courts have consistently ruled that while parties who agree to arbitrate relinquish their right to a jury trial by definition, those parties benefit from selecting a more efficient and less rigid option for resolving their case.

Misperceptions about the lack of appeals – Others mistakenly claim that arbitration decisions cannot be appealed. On the contrary, parties can seek to void (or vacate) arbitration decisions in court. While the terms of some arbitration agreements call for the appointment of a specialized appellate arbitration panel to review contested decisions, even these “second level” arbitration decisions can be reviewed by a court.

Further, a binding arbitration decision only becomes legally enforceable when it is confirmed by a court after the proper review. If a party believes that either the arbitration agreement itself is unfair (or unconscionable) or the manner in which the arbitration agreement is presented or administered is unconscionable, the arbitration decision may be challenged in court at the confirmation/vacatur hearing. A court can strike any portion of an arbitration agreement it finds unconscionable, and may even vacate the arbitration decision altogether.

Unfamiliarity with modern arbitration agreements – Some critics of pre-dispute arbitration agreements focus on older, outdated agreements that placed limitations on awards and/or required consumers to travel unreasonable distances to assert their claims. The vast majority of modern pre-dispute arbitration agreements, however, no longer contain these offensive terms, as courts have provided guidance on how to draft fair and lawful agreements.

The FORUM strongly recommends that drafters of pre-dispute arbitration agreements follow the guidance of the courts.

Unfamiliarity with arbitration’s benefits - Experienced trial attorneys tend to be more familiar with traditional court litigation, and may be reluctant to explore new methods of dispute resolution.