Noam Ebner posted a comment on the DRLE listserv about the recent series of articles in the New York Times about arbitration.  I wrote the following comment, in part, responding to his.  I am reproducing his comment with his permission.   In my comments below, I added a paragraph which wasn’t in my listserv comment, about the first article in the NYT series.

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Here’s Noam’s comment:

Hi people,
I’d like to open up something that might be seen by some as tangential to the arbitration-focused discussion we’ve been having so far – but which might be important/interesting to discuss, nonetheless.

Having read this series of articles, I noticed how my own gut responses came from a consumer, a rights, a legal, and an ADR perspective – in that order.  Given that my ADR focus is not arbitration (go ahead, stone me!), my thoughts on the topic were nothing to write home (far less, to this group of mavens) about – until I noticed that I was ‘othering’ this discussion, reading it in an interested-yet-detached manner as if it was something that had to do with arbitration alone and not with ADR in general.

That was probably a mistake.

An issue which I’d like to raise with the group, would be the potential effect of this series of articles and the ripples it creates on ADR in general, and particularly on mediation.

An optimistic (not to say, opportunistic) approach, from a mediation viewpoint, might consider this as having the potential to pose a turning point in the general preference for arbitration in any dispute resolution clause, and to improve mediation’s appeal in a more general sense.   Arbitration the new Enemy of the People?   Enter mediation – your friendly process pal who’s fun to be with!

A more concerned reader might consider that the debate this series sparks will have negative blowback on ADR in general, mediation included.  The average person on the street does not differentiate arbitration from mediation (heck, we’re lucky when they differentiate mediation from meditation, in spelling and in perceived practicality for conflict resolution) and any spatter this series engenders is likely to spatter all over.  [If this more concerned reader wanted to pick a fight, on this list or in a mediators’ bar, s/he might also suggest that in the context of these articles, such general spattering might be somewhat justified, given the degree to which mediation has associated itself with non-voluntary notions – through mandatory and court-ordered mediation through its inclusion as a first step in some dispute resolution clauses, etc.]

A very concerned reader, might wonder how mediation would stand up to the same depth of exploration – of manipulation of purpose and of sharp practices – should a widely-read newspaper conduct the same type of examination that the NYT subjected arbitration to.  (Jim Coben and others have uncovered some of these, mainly for internal discussion, and each was enough to make me cringe – – I wonder what an external examination would look like)?

Yours,
A Very Concerned Reader.

Noam Ebner
Professor of Negotiation and Conflict Resolution
Online Graduate Program Chair
at Creighton University School of Law

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Noam, thanks for your thoughtful comments.  As you know, we did a session at the ABA conference last spring, with Jim Coben and Alyson Carrel, tongue-in-cheekily titled, Everything You Know About Dispute Resolution is Wrong – Can You Handle the Truth?  I blogged about it, where I posted Jim Coben’s powerpoint addressing problematic claims from our field about mediation.  A news organization doing a one-sided sensational story could give a distorted image based on these observations or the mediation horror stories that Art Hinshaw has been collecting.

Like you, I don’t focus on arbitration and so I usually don’t speak up about it.  And for what it’s worth, I am predisposed to agree with the thrust of the NYT articles (herehere, and here) in being wary about pre-dispute arbitration adhesion contracts with employees, consumers, medical patients etc., especially when there is a class action waiver.

I was so turned off by the quality of reporting that I didn’t read it carefully.  My concern is that the NYT articles feel like a one-sided partisan brief rather than a fair journalistic analysis.   I think that news organizations abdicate their responsibility when they simply provide “he said, she said” accounts without analysis of the merits of conflicting factual and policy claims.  But surely, they can provide something helpful in between agnostic and partisan accounts.

There are some situations where there really isn’t a legitimate alternative perspective.  But, as problematic as pre-dispute arbitration is, the litigation alternatives also are problematic, which the articles didn’t seem to acknowledge.

What I recall was a series of anecdotes about plaintiffs who lost in arbitration.  The articles imply that the plaintiffs’ losses were due to the forum rather than the merits of the case or other factors, but that’s hard to know, especially with the limited details provided.

This newspaper series raises several concerns for me.  First, providing a fair analysis is a basic matter of intellectual integrity.  In addition, this kind of reporting can inflame and polarize, distracting attention from the real issues.  Those who feel that the reporting is unfair can understandably focus on the reporting rather than the dispute system design issues.  And partisan reporting leaves readers unsure about the accuracy of the claims.

The first article in the NYT series provides some helpful data and accounts of the recent history of arbitration jurisprudence.  Unfortunately, given the overall approach of the series, I don’t have confidence that this is a fair portrayal rather than an  analysis slanted to fit the writers’ conclusions.   If I was an arbitration expert, I would be better able to assess the fairness.  But if I can’t make that judgment, I worry about readers who know less than I do.

This series was published following a controversial article about working conditions at Amazon, where the fairness of the reporting was also an issue distracting from the substantive issues.  Not long before that, The Times had to retract a false claim that there was a criminal investigation about Hillary Clinton’s use of emails.  This history raises further doubts about the quality of reporting in the arbitration series.

As a mediator at heart, I would love to see solutions satisfying legitimate interests of the various stakeholders. I was heartened to read an article reporting on roundtables about consumer and employment arbitration involving a wide range of stakeholder representatives.  Nancy A. Welsh & David B. Lipsky, “Moving the Ball Forward” in Consumer and Employment Dispute Resolution: What Can Planning, Talking, Listening and Breaking Bread Together Accomplish?, Disp. Resol. Mag., Spring 2013, at 14.   The article describes what sounds like a much fairer effort to collect and analyze data than the NYT series.  Click here for the full report.

The article ends calling for further collaborative work.  Does anyone know what, if any, follow up has been done since then?

 

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org