Bruce Nye on Arbitration

by Jon-Erik G. Storm on Wednesday, June 10th, 2009

Go read.

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{ 3 comments }

Bruce Nye 06.10.09 at 3:10 pm

Jon-Erik –

As always, appreciate the mention. Thanks.

Would you be kind enough to drop me an e-mail I can reply to? There’s something I want to raise off-line.

Bruce

Amy Semmel 06.18.09 at 12:40 pm

Your point regarding arbitration not being to the benefit of employers is not well-taken. You make the common rhetorical error of using a single outlier to attempt to disprove what is statistically true. Numerous academic studies show that in arbitration employees are less likely to win, and, when they do win, the awards are smaller than comparable court cases. See e.g., Theodore Eisenberg and Elizabeth Hill in “Arbitration and Litigation of Employment Claims: An Empirical Comparison” published in the Dispute Resolution Journal in 2003 and A. Colvin, “Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury?”, published in the Employee Rights and Employment Policy Journal in 2008.

Jon-Erik G. Storm 06.19.09 at 10:05 am

Amy:

If you’re referencing something I wrote, you are misrepresenting what I’ve said. If your comment is directed at Bruce, I suggest you make your comment there.

I think also you mean to say I’m making a fallacious argument; from a rhetorical point of view, using outliers can be powerful. Think of the welfare queen story.

As for those broad-stroke empirical studies, I’m sure they are well done. My point is, and has always been, that it’s not a panacea and can actually be bad in certain cases. My clients don’t want to be statistics. They want to know what to do in their particular case. Professionals are called on to make those judgments. We aren’t social scientists. All that matters is the one case. And if it is that outlier, we are not doing our job to supply knee-jerk advice.

All I’ve ever posted is challenges to that dogma when it applies. And I would say it applies more often where I work than in many places, because courts and juries are more employer friendly. Does your study correct for that?

I think the current state of California law and the “arbitroskepticism” shown by the Court of Appeal, along with the current forum’s dynamics (as well as that of the individual client) have to be considered before your recommend this to clients. And putting out e-mail blasts saying “contact us about drafting an arbitration clause” or “you need to have your agreement reviewed every two weeks” is ham handed marketing. You might generate some fees. You might even get to take a case to the Court of Appeal. But after the fees are paid, is your client better off?

I for one bet Circuit City wished it had some of the money it paid its lawyers to be so aggressive with each and every one of its employment policies back when it filed for bankruptcy. But, hey, it was an outlier, right? Apparently it and/or its attorneys didn’t think so; they thought they were right in the wheelhouse of normal.

At the very least, I think reasonable people can disagree, empirical studies notwithstanding.

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