Revising the Revision: Procedural Alternatives to the Arbitration Fairness Act

Abstract

In the past decade, debate over the fairness of predispute arbitration agreements has intensified. Recently, some members of Congress have joined the chorus of opposition to these agreements and are attempting to outlaw them via the proposed Arbitration Fairness Act (AFA). Compounding the problem, both proponents and critics of the AFA are taking hard-line stances on the perceived ills or benefits of arbitration rather than trying to simultaneously address some of its flaws and preserve some of its benefits. The purpose of this Comment is thus twofold: first, it responds to the overbroad AFA proposal to outlaw predispute agreements; and second, it attempts to highlight some of the benefits of predispute agreements so as to ameliorate critics’ concerns about their pitfalls. The Comment then proposes that businesses should shoulder the costs associated with arbitration and that an institutional middleman should be involved in arbitral proceedings. These recommendations will hopefully help balance the disproportionate influence of businesses in arbitration proceedings and eliminate the potential for arbitrator bias with which critics take issue.

57-4-5
By uclalaw