The jury trial is fundamental to our American justice system. It is so vital that our Founding Fathers guaranteed the right in the Seventh Amendment to the Constitution. Unbiased peers have no ties to either side and are instructed to base their decisions upon the facts presented during the trial. A fair trial is a truly great and unique concept.
Yet, our trial system is being threatened by the inclusion of arbitration clauses in just about every contract we sign.
The New York Times has just written an excellent series uncovering the unjust results of forced arbitration. The articles showcase how mandatory contractual arbitration clauses have unfairly skewed justice and led to inequitable results for injured parties and consumers.
The problem, as the NYT shows, is that the right to a trial has been taken away from the people who need it most, those who lack negotiating power.
Arbitration is a process by which a possibly neutral professional(s) acts in a quasi-judicial role to resolve a dispute. During arbitration proceedings, the parties present evidence and witnesses, just as they would in a trial. The arbiter considers the evidence before rendering a binding judgment. There is no appeal. Arbitrators often charge $1,500 to $2,000 a day, often paid for by the victim or consumer.
Why is the Right to a Trial So Important?
The trend toward mandatory arbitration is alarming.
The public lacks the opportunity to negotiate these clauses. For example, say your car rental agreement contains a clause that mandates arbitration should an auto defect result in an accident. The reality is that you probably did not read the clause buried in a 10 page contract or are in a position to demand that the clause be removed from the contract.
You are also unlikely to even get the contract in hand until you are already at the rental location and unable to go to another company. Even if you did go elsewhere, chances are that that rental company also includes an arbitration clause in its contract.
The arbitration clause is almost always written in favor of the company, including the location of the proceedings, cost, and choice of arbitrators.
Now let’s say you get in an accident. The possibility of a trial can sometimes encourage insurance companies to settle claims for an equitable amount. However, the company knows that you cannot take your claim to trial and may be less willing to negotiate.
One big difference between arbitration and trial is the right to appeal. If an error occurs during your arbitration, you have no legal recourse, whereas a trial error may be brought up on appeal.
Before making decisions about your auto accident case, let an experienced personal injury attorney review your contract and analyze whether to fight the arbitration clause if necessary.