Arbitration|Conflict Resolution|Employment|Mediation

National Roundtable on Consumer/Employment Dispute Resolution

One of the most interesting sessions at the ABA Dispute Resolution meeting in Washington was a report on an initiative of the Straus Institute at Pepperdine and the Dickerson School of Law at Penn State:  A National Roundtable on Consumer and Employment Dispute Resolution. 

Consumer and employment arbitration is a difficult topic upon which to find rational discourse.  It seems that folks tend to follow Pogo’s advice: “Don’t let the facts get in the way of your research.”  Yet here are Co-Chairs Tom Stipanowich and Nancy Welsh forming a Planning Committee comprising Lisa Bingham, Larry Mills and Homer LaRue to invite 30 scholars, advocates, representatives, policymakers and ADR professionals to have a rational conversation on the topic last February.  The session was conducted under “Chatham House Rules”  and a summary report reveals not only the topics discussed, but a work plan coming out of the initiative.

Some topics for empirical research, and of brainstorming, were:

  • Class Actions
  • Frequency of Class Action Preclusion
  • Alternatives to Pre-Dispute Arbitration
  • Arbitration CLauses, Notice and Consumer Understanding and Awareness
  • Costs and Benefits of Consumer Arbitration
  • Online Dispute Resolution of Small-Value, High-Frequency Consumer Disputes

Participants engaged in three days of respectful and constructive dialogue, the most contentious topic being the recent Supreme Court ruling in Concepcion that class action waivers in consumer arbitration agreements are enforceable under the Federal Arbitration Act.  Rather than seeking consensus, the participants formed five Working Groups to pursue further empirical research:  (1) Disputes amenable to ODR; (2) Sources of data for information regarding arbitration clauses and programs; (3) Development of private alternatives such as Tom Stipanowich’s recently proposed Arbitration Fairness Index; (4) Development of “final offer arbitration” for consumer disputes; and (5) Development of options for improved consumer access to attorneys.

These five Task Forces will report at a follow-on meeting of the National Roundtable, to be held at Penn State in Fall 2012.  That meeting will focus on employment dispute resolution.

Copies of the Summary Report will soon be posted at the ABA Dispute Resolution page and are available from Nancy Welsh.  It is about time that the ADR community stopped yelling and sat down to do the hard work of finding out what is happening, and perhaps devising policy options that are more nuanced than those currently being considered.


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