Helpful, thank you! That's quite an interesting result to consider.
I'm curious why I haven't seen any signs of people going after the arbitration firms and their impartiality, rather than going after the companies using those firms.
I'm curious why I haven't seen any signs of people going after the arbitration firms and their impartiality, rather than going after the companies using those firms.
I think the reasoning people have is the alignement of incentives is messed up:
Big companies will use arbitration if it provides them a cheaper alternative than going to actual courts.
The arbitration firm that is more employer friendly will save more money to a company than a firm that is less employer friendly, therefore the company is more likely to hire the first one. And arbitration firms are more likely to be employer friendly since their financial success is impacted.
Ending arbitration isn't necessarily the right solution, since courts could be too crowded, but maybe authorizing it, only if the case is handle in a timely fashion, and the employee has a right to "appeal" to a regular court , could make it more fair and more economical to both sides?
I posted some studies from SSRN, etc in my other comment here, but: Most studies that try to objectively evaluate the data (and there are plenty that don't on both sides!) don't come up with obvious "the arbitrators are unfair" or "court is right more of the time" answers. This is why you see the policy folks go after the win rates.
It is definitely true that large scale studies agree that the win rate is less in arbitration (There are some smaller scale studies cherry picking data that find otherwise).
The large scale studies though don't have enough data to say whether that win rate makes sense or not.
I posted the most recent one (not yet published) which tries to understand the variables affecting win rate.
Trying to objectively take 1000 cases in court/arbitration and say "what should have happened" has not occurred. Without something like that, it is hard for folks to make a meaningful case that there is a real problem.
Despite what the prevailing viewpoint here seems to be, the truth is if someone did that study, in as unbiased a way as possible, it would likely be significantly more convincing to the judiciary than what they see now (trying to convince the populace/politicians is much harder :P)
For example, right now if you ask federal judges (no matter what their politics) whether they think all the winning employment legal cases before them deserve to be winning, their answer is a resounding no.
If it was a resounding yes, or the data showed the opposite effect in arbitration (IE people were losing cases they shouldn't), you'd have an easier time getting courts to buy that arbitration was actually harming people.
But we can't seem to get past the policy positions and "people should always be in court" mentality.
It's really quite sad.
(I'd also be interested in knowing why the comparison was with "federal court" and not "any court".)