Arbitration is an alternative to civil litigation where both parties agree to forgo the option of suing in court. Many employment agreements contain provisions under which the employer and employee agree to resolve disputes in arbitration. Recently, there have been several proposals at both the state and federal level to ban the use of arbitration agreements in employment.
How much do you know about these agreements? Let’s play “Two Truths and a Lie” and find out. Can you identify which of the following statements is not true?
Arbitration is quicker, less adversarial, and more efficient than litigation in court.
Arbitration silences victims and denies victims their day in court.
Claimants can pursue all of the same rights and remedies in arbitration that they can pursue in court.
Let’s take these statements one at a time:
TRUTH! Like litigation in court, arbitration is a means of dispute resolution that involves a hearing before a neutral party. Unlike litigation in court, however, arbitration is private, less formal, and less adversarial. Because arbitration does not apply formal rules of evidence, cases can be resolved in less time.
LIE! Although arbitration proceedings are private, they do not necessarily prevent parties from discussing the underlying facts of the case. Absent confidentiality agreements between the parties, victims can still hold press conferences, give interviews, write articles, write books, or otherwise exercise their First Amendment right to speak about their experience. Significantly, arbitration does not prevent the filing of criminal cases or the filing of charges with government agencies, which can then bring their own enforcement actions. An arbitration agreement simply requires that civil claims for monetary damages be resolved in arbitration, rather than court.
TRUTH! Any and all claims that can be pursued in court can be pursued in arbitration. And a claim brought in arbitration can reap the same amount of civil damages as a claim filed in court. In arbitration, rights and remedies remain the same. Only the forum changes.
Bottom line: When you hear politicians say that arbitration denies victims their day in court, remember that, while arbitration provides a more efficient forum for dispute resolution, it doesn’t alter a claimant’s rights or remedies.