Man, of all the legal problems we have right now, you're worried about people being forced to arbitrate their cable TV agreements? What are the damages there? Fifty bucks per month, maybe? Ugh.

Regardless, the strategy is obvious. Challenge the arbitration clause. I doubt that a court would enforce an arbitration clause in a mortgage.

Imagine: you are about to lose your home, you feel as if the foreclosure is illegal or unjustified, but you cannot get a court order to stop the foreclosure. You have to go to mandatory arbitration, but how many lawyers even know or practice in the arbitration field for consumers?
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Do you really think this is a problem? The process for mortgage foreclosures (at least here in Colorado) is pretty strictly prescribed by state law. Frankly, with as many foreclosures as there are right now (horrible here), most lenders are bending over backwards to keep from foreclosing with people who make good faith efforts to work with them - at least that's what my brother-in-law the real estate agent tells me.

Also, I did a search in FindLaw for arbitration attorneys here in Denver and got 74 hits.

Are you really living in fear of suing your cable company? Have you thought about Direct TV?

Maybe you are all not in an area which has a cable monopoly in place.

If your friendly, local telco does not want to run it's new FIOS to your home, you're screwed. And while it's not an Alberto Gonzales type importance, it still can impact on the consumer and make them feel as helpless as Pat Leahy watching the Chimp's organ grinder flip him off.

Here's a sample scenario-

Everytime it rains, your premium service goes out. No Soprano's. Everytime the cable company sends someone out, the sun is shining. No problems. You decide to complain. The arbitrator decides that the cable company has fulfilled their obligation to you by sending out the repair people, who find no problem. You're screwed, with no further threat except to discontinue service. Where are you gonna go? Your homeowner's association has banned Dish Network antennas in your development. No TV, no internet, no Sopranos.

No recourse, which I believe is the thrust of Ms. Weis's post.

Alphonse ( Al ) Kada
Iranians are fighting the Americans in Iraq so they don't have to fight them on the streets of Tehran

Arbitration firms are notorious for being staffed with ex-industry people and most lawyers will tell you that you usually have a better shot in court than with an arbiter.

thosethingswesay.blogspot.com

My initial reaction was the same as yours, though. I think Ellen maybe needed to do a better job showing that this isn't just about disputes over $50 phone bills.

She needed to go further to "sell" this topic.

thosethingswesay.blogspot.com

Again, I disagree. Not everything is a slippery slope. In other words, there is a difference between small things and big things, namely, small things are small and big things are big. Do you see that difference? We don't know that it will apply to big things.

I would expect a skillful lawyer to be able to argue that an arbitration clause in a mortgage is unconscionable. I would expect that could be done with ease since mortgages are generally contracts of adhesion and state laws proscribe general procedures for foreclosure that are designed to to protect the debtor.

The assumption I am operating on is that arbitration clauses are acceptable for certain cases and not acceptable for other cases. They're acceptable when we're talking about cable TV contracts. When it comes to cable TV there is an incredibly tiny, possibly unimaginable chance of the case involving personal injuries, unlike products liability for example. The measure of recovery and thus the extent of the dispute is limited to the amount of money owed under the contract. Very little is at stake in cable TV contracts.

Kia, having taken a look at your blog, I have no doubt that you know a lot more about this than I do. The portions of the arbitration act that the Supreme Court quotes in the article that Ellen linked to states that arbitration clauses are entitled to the same protection as other clauses under principles of law and equity in the state. To me that looks like a lot of room for state legislatures and courts to limit the effectiveness of arbitration clauses. It doesn't stop courts from finding that arbitration clauses are unacceptable for generally applicable reasons. Am I misunderstanding the the FAA?

In any case, you appear to be operating on another seriously questionable presumption. You note there are few jurisdictions that are bold enough to limit arbitration clauses and the courts tend to defer to business. The problematic assumption is that people are going to get a fair shake in the courts. People get screwed by courts everyday. While the federal judiciary is particularly despicable for a lot of reasons, state courts are no better, especially in states where every judge is elected.

So, I guess my problem is that I can't really accept that courts necessarily are better than arbitration.

I have no idea what motivated Ellen to write this piece. I do know that the anti-arbitration movement is largely funded by the dark side (Ralph Nader) of the liberal establishment. The contingency fee driven trial lawyers hate any dispute resolution mechanism that doesn't involve a jury. Their craft is a form of theatre that really doesn't play well in the presence of of an arbitrator who might know a bit about the actual commercial issues at hand.

As I note below, it's not like courts are your friends. Judges, especially state judges, are just as biased as anyone else. They are dependent on campaign contributions. They tend to be rich white guys.

Whatever, our legal system is a joke. On the whole it is not designed to produce substantive justice. Everything we are told in school about the how we have rights that the law will protect, about how criminals can't be convicted without evidence beyond a reasonable doubt, about a judicial system that is responsive to people's problems--all that is bullshit. Even your belief that you have any access to the courts is bullshit. You don't. It doesn't exist in reality.

When it comes down to it, the little problems are just as hard to solve as the big problems. To change the arbitration act at issue here, we need an act of congress. To fix the bankruptcy code, we need an act of congress. To restrain Bush & Co., we need an act of congress. So, yeah, let's focus on the big issues and not waste time on the little ones.

Maybe you're right. I want you to be right. But I don't really have any hope that it's going to change.

Why not refuse and see what happens? Really. Refuse it. Your failure to refuse is reflective of your belief in your own powerlessness--it's not based in reality. If they tell you that you can refuse without affecting your service, but then refusal affects your service, that creates it's own independent lawsuit--it's fraud, misrepresentation. Do yourself a favor and refuse it.

My pessimism is deep and thorough going. I basically think you have to have about 80% of the country on your side before you can accomplish anything real in Congress. The problem with passing any law is that it immediately becomes entrenched. We never see people get thrown out of congress for passing laws that benefit the rich at the expense of the middle class or the impoverished. When people do get thrown out of office, the incoming congress can't quickly change the law. We can't really expect congress to fix anything retrospectively--they don't change bad policies enacted previously. They just make changes as new issues arise.

Again, whatever, I need to stop talking about this since it makes me so angry.

About the FAA, state legislation to limit the restrictiveness of arb clauses hasn't been super helpful because state law can be (and usually is) quashed by the FAA.

About the arb vs. court concerns: I agree that civil courts aren't perfect--everyone doesn't get a fair shake. I mean, look at how long it took for the law to recognize racial and gender-based discrimination as wrong and actionable in court. But a court of law has much more effective checks against giving people an arbitrarily unfair shake than an arbitration proceeding. Like: judges have to spell out the reasoning for their judgement and they know that what they say is publicly preserved and subject to appeal; you are often in front of a jury of your peers in court; judges have to follow legal precedent in court, etc. Arbitrators aren't bound by these rules--they can (and do) just force parties to split the expenses down the middle, they can rule based on what they had for breakfast that morning, or based on who is more likely to hire them again.

Mandatory binding arb is just a bad idea unless the arbitrator is dealing with two parties who have equal resources and bargaining power. Proof of this is the high volume of individuals fighting against and businesses fighting to enforce arbitration clauses.

(Reece: Thanks for visiting tortdeform.com, by the way!)

I don't remember enough to make it googlable, but I seem to recall a scandal a few years ago, maybe here in Brooklyn, in which an arbitrator was busted for taking bribes from one side.  It's mere anecdotal evidence, and I'm sure it doesn't happen all that often, but it does point to the fact that there disincentives to corruption are more institutionalized in the courts than in the arbitration system, where the less public nature of the proceedings probably makes it easier to be bought off.