The Arbitration Fairness Index: Using a Public Rating System to Skirt the Legal Logjam and Promote Fairer and More Effective Arbitration of Employment and Consumer Disputes

Abstract

Recent Supreme Court decisions have heightened concerns about the degree of effective judicial oversight of consumer and employment arbitration under binding predispute agreements. Efforts to address such concerns are largely stymied by a political logjam. Because binding arbitration serves as the adjudicative backdrop for many kinds of consumer disputes or employer-employee conflict, the choice of arbitration and the kind of justice available under arbitration agreements may be every bit as important as consumer warranties and other substantive rights and remedies. Yet consumers and employees tend to know very little about arbitration and how it affects their rights and obligations; arbitration programs are an arcane and little-understood domain. This article explores the possibility of skirting the legal logjam through an Arbitration Fairness Index, an independent system to rate and rank consumer and employment arbitration programs. It discusses the major role ratings systems play in society and posits numerous benefits that might come from an Index that enhances understanding and awareness of the use and impact of arbitration programs. It identifies criteria for the development of an effective rating system, considers due process protocols and other standards and studies that might be of relevance to its creation, proposes a template of twenty-four elements as a basis for the Index, and explores issues associated with its implementation. It concludes that although there are significant challenges associated with obtaining the several sources of information that will underpin program ratings, an Arbitration Fairness Index will be a unique and valuable resource that complements and reinforces other current initiatives and raises consciousness of arbitration programs to a new, more appropriate level.

Keywords: Consumer arbitration, Employment arbitration, Adhesion contracts, Rating systems, Consumer due process protocol, Employment due process protocol, Dispute systems design, Class action waiver, Arbitration forum, ADR Provider