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Is arbitration viable tort reform?
https://gladerebooted.net/viewtopic.php?f=8&t=7283		 Page 1 of 1
Author:  Colphax [ Thu Sep 29, 2011 7:17 pm ]
Post subject:  Is arbitration viable tort reform?
Supreme Court decision disrupts class action lawsuits
TL;DR version: Supreme Court decision made the Federal Arbitration Act supreme over state laws. This decision is now being used to kill many class-action suits where companies have an arbitration clause in customer contracts, forcing plaintiffs into binding arbitration.

I'm torn on this one. Class action lawsuits can get a company's attention and force them to change policies. But on the other hand, how many class action settlements wind up being worthwhile (worth at least my time/energy to pursue a coupon, basically)? Meanwhile, I know that the class action attorneys are making a millions while I have to register to get something like $10.

But I'm not a fan of arbitration, basically because I question the impartiality of arbitrations. This is because (like the article mentions) most arbitrations side with the companies. The cynical side of me wonders if the fact that most arbitration procedures are paid for by the companies and not the plaintiffs has any effect upon the decisions being made.

Gotta wonder how long companies are going to be able to use this tactic before something changes.
Author:  Rorinthas [ Thu Sep 29, 2011 7:36 pm ]
Post subject: 
Tort reform is viable tort reform. People agreeing via contract not to take their issues to court is people agreeing via contract not to take their issues to court. The fact that I agreed not to sue my employer but instead go to a nationally recognized board of mediation has nothing to do with the need to deal with getting millions of dollars for chipping a tooth.
Author:  Diamondeye [ Thu Sep 29, 2011 8:36 pm ]
Post subject:  Re: Is arbitration viable tort reform?
I'd like to know why most arbitrations side with companies, from something at least resembling an impartial researching of the subject. I suspect that a lot of it is because there are a lot of people out there just looking for any excuse to get a settlement... like my crazy-ass aunt, but that's another story.
Author:  Rorinthas [ Thu Sep 29, 2011 9:15 pm ]
Post subject:  Re: Is arbitration viable tort reform?
My understanding was that a large percentage of people get similiar verdicts from arbitration/mediation.
Author:  Xequecal [ Thu Sep 29, 2011 9:16 pm ]
Post subject:  Re: Is arbitration viable tort reform?
Arbitrators side with the companies most of the time because they're not true legal entities. They don't have to respect precedent. I mean have you ever actually read the Terms of Service agreement that comes with literally everything these days? You know, the document that says, "you have no rights, we own everything, we can even disable this product without giving you a refund at our whim if we want"? These don't get upheld in court, but arbitrators respect them.
Author:  Colphax [ Fri Sep 30, 2011 3:13 am ]
Post subject:  Re:
Rorinthas wrote:
Tort reform is viable tort reform. People agreeing via contract not to take their issues to court is people agreeing via contract not to take their issues to court. The fact that I agreed not to sue my employer but instead go to a nationally recognized board of mediation has nothing to do with the need to deal with getting millions of dollars for chipping a tooth.

Erm, you do realize that very rarely does a claimant gets millions of dollars in a class-action lawsuit, right? The settlement may be in the millions, but each claimant only gets a share...and for settlements to get into the millions, there has to be a LOT of claimants, or a LOT of damage. I think BP's recovery fund is the closest you'll get to significant dollars per claimant, and not too many of them got that much.

The most I've ever gotten offered in a class action settlement that I qualified for was for like $25, from Microsoft, or a free oil change from Jiffy Lube.

If a class action lawsuit is filed over a chipped tooth, it means that *everyone* in the class would have to have received that very specific injury. And injuries usually mean more than most states' small claims courts. But for something like the guy in the article who alleges he was getting defrauded by a company that he never signed an agreement with ? There's no incentive for a company to stop, that guy has only small claims court to go to. There's not enough financial damage for a 'real' lawsuit. And for the few people who actually go that far, the company pays their settlements as a cost of doing business. So that leaves only trusting in Congress to pass a law to change the practice.

Sorry, Rori, I can't agree with you. Any tort reform just for the sake of tort reform isn't necessarily in our best interest. Viable is something that satisfies justice while at the same time preventing abuse on both sides. I don't think this is viable. All this does is tip the scales way far over the other way.
Author:  Ladas [ Fri Sep 30, 2011 12:29 pm ]
Post subject:  Re: Is arbitration viable tort reform?
Xequecal wrote:
Arbitrators side with the companies most of the time because they're not true legal entities. They don't have to respect precedent. I mean have you ever actually read the Terms of Service agreement that comes with literally everything these days? You know, the document that says, "you have no rights, we own everything, we can even disable this product without giving you a refund at our whim if we want"? These don't get upheld in court, but arbitrators respect them.

You need to do more research on this topic. Arbitration still has to follow the laws in place that would otherwise govern a trial, and most arbitrators I know are judges or lawyers that are familiar with the laws governing that particular topic.

However, what you don't have is a jury, which usually works out in favor of the defendant, because the people doing the arbitration have heard or seen it all before, so the heart sob/grand standing/absurd excuses doesn't hold a lot of sway with them.
Author:  Xequecal [ Fri Sep 30, 2011 1:10 pm ]
Post subject:  Re: Is arbitration viable tort reform?
Yes, arbitration has to follow the laws in place, but they don't have to respect precedent. Unlike in the court system, an arbitrator is not bound to rule a certain way just because someone else ruled that way before them in a similar case.
Author:  Elmarnieh [ Mon Oct 03, 2011 8:26 am ]
Post subject: 
Which is a good thing.
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