Forced arbitration: Difference between revisions

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Forced Arbitration is a practice in which businesses can require their customers to resolve disputes through arbitration, instead of a traditional court system. Per Wikipedia: "Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision."<ref>[[wikipedia:Arbitration#References|https://en.wikipedia.org/wiki/Arbitration]]</ref>

Forced Arbitration is a practice in which businesses can require their customers to resolve disputes through arbitration, instead of a traditional court system. Per Wikipedia: "Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision."<ref name=":1">[[wikipedia:Arbitration#References|https://en.wikipedia.org/wiki/Arbitration]]</ref>

== How it Works ==

Businesses will typically add an arbitration clause to their Terms of Service or Terms of Use. This clause generally outlines how disputes are handled between the consumer and the business. A good example of a typical arbitration clause can be found in Instagram's Terms of Use, which, as of January 6th, 2025, is under Section 7.4 - How We Will Handle Disputes:<ref name=":0">https://web.archive.org/web/20250106102429/https://help.instagram.com/581066165581870/ (January 6th, 2025) Retrieved January 13th, 2025</ref><blockquote>"Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Instagram ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Instagram users."</blockquote>Currently, in the United States, arbitration clauses such as this one are legal under the Federal Arbitration Act (FAA).<ref>https://www.govinfo.gov/content/pkg/USCODE-2019-title9/html/USCODE-2019-title9.htm</ref> However, efforts have been made to prohibit forced arbitration, most notably the Forced Arbitration Injustice Repeal (FAIR) Act of 2023.<ref>https://www.congress.gov/bill/118th-congress/senate-bill/1376</ref>

Businesses will typically add an arbitration clause to their Terms of Service or Terms of Use. This clause generally outlines how disputes are handled between the consumer and the business. A good example of a typical arbitration clause can be found in Instagram's Terms of Use, which, as of January 6th, 2025, is under Section 7.4 - How We Will Handle Disputes:<ref name=":0">https://web.archive.org/web/20250106102429/https://help.instagram.com/581066165581870/ (January 6th, 2025) Retrieved January 13th, 2025</ref><blockquote>"Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Instagram ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Instagram users."</blockquote>Currently, in the United States, arbitration clauses such as this one are legal under the Federal Arbitration Act (FAA).<ref name=":2">https://www.govinfo.gov/content/pkg/USCODE-2019-title9/html/USCODE-2019-title9.htm</ref> However, efforts have been made to prohibit forced arbitration, most notably the Forced Arbitration Injustice Repeal (FAIR) Act of 2023.<ref>https://www.congress.gov/bill/118th-congress/senate-bill/1376</ref>

== Why It's a Problem ==

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This practice is similar to how gyms will often require members to travel to their location or send snail mail to cancel a membership, while an online system could easily be put in its place.

=== Conflict of Interest ===

Companies track performance of arbitrators over time, and as such, are able to pick arbitrators that lean towards the industry rather than the consumer.<ref name=":1" /> While both the consumer and company theoretically have some control over the selection of the arbitrator, the company generally has an information advantage in the selection process. Furthermore, individual arbitrators have a long-term financial incentive to bias their rulings in favor of corporations, as the corporation is much more likely to become a "repeat customer" than the consumer. In extreme cases, entire arbitration firms may have a material conflict of interest.<ref name=":2" />

== Examples ==

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-Forced Arbitration is a practice in which businesses can require their customers to resolve disputes through arbitration, instead of a traditional court system. Per Wikipedia: "Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision."<ref>[[wikipedia:Arbitration#References|https://en.wikipedia.org/wiki/Arbitration]]</ref>
+Forced Arbitration is a practice in which businesses can require their customers to resolve disputes through arbitration, instead of a traditional court system. Per Wikipedia: "Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision."<ref name=":1">[[wikipedia:Arbitration#References|https://en.wikipedia.org/wiki/Arbitration]]</ref>
 == How it Works ==
-Businesses will typically add an arbitration clause to their Terms of Service or Terms of Use. This clause generally outlines how disputes are handled between the consumer and the business. A good example of a typical arbitration clause can be found in Instagram's Terms of Use, which, as of January 6th, 2025, is under Section 7.4 - How We Will Handle Disputes:<ref name=":0">https://web.archive.org/web/20250106102429/https://help.instagram.com/581066165581870/ (January 6th, 2025) Retrieved January 13th, 2025</ref><blockquote>"Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Instagram ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Instagram users."</blockquote>Currently, in the United States, arbitration clauses such as this one are legal under the Federal Arbitration Act (FAA).<ref>https://www.govinfo.gov/content/pkg/USCODE-2019-title9/html/USCODE-2019-title9.htm</ref> However, efforts have been made to prohibit forced arbitration, most notably the Forced Arbitration Injustice Repeal (FAIR) Act of 2023.<ref>https://www.congress.gov/bill/118th-congress/senate-bill/1376</ref>
+Businesses will typically add an arbitration clause to their Terms of Service or Terms of Use. This clause generally outlines how disputes are handled between the consumer and the business. A good example of a typical arbitration clause can be found in Instagram's Terms of Use, which, as of January 6th, 2025, is under Section 7.4 - How We Will Handle Disputes:<ref name=":0">https://web.archive.org/web/20250106102429/https://help.instagram.com/581066165581870/ (January 6th, 2025) Retrieved January 13th, 2025</ref><blockquote>"Except as provided below, you and we agree that any cause of action, legal claim, or dispute between you and us arising out of or related to these Terms or Instagram ("claim(s)") must be resolved by arbitration on an individual basis. Class actions and class arbitrations are not permitted; you and we may bring a claim only on your own behalf and cannot seek relief that would affect other Instagram users."</blockquote>Currently, in the United States, arbitration clauses such as this one are legal under the Federal Arbitration Act (FAA).<ref name=":2">https://www.govinfo.gov/content/pkg/USCODE-2019-title9/html/USCODE-2019-title9.htm</ref> However, efforts have been made to prohibit forced arbitration, most notably the Forced Arbitration Injustice Repeal (FAIR) Act of 2023.<ref>https://www.congress.gov/bill/118th-congress/senate-bill/1376</ref>
 == Why It's a Problem ==
@@ Line 13: / Line 13: @@
 This practice is similar to how gyms will often require members to travel to their location or send snail mail to cancel a membership, while an online system could easily be put in its place.
+=== Conflict of Interest ===
+Companies track performance of arbitrators over time, and as such, are able to pick arbitrators that lean towards the industry rather than the consumer.<ref name=":1" /> While both the consumer and company theoretically have some control over the selection of the arbitrator, the company generally has an information advantage in the selection process. Furthermore, individual arbitrators have a long-term financial incentive to bias their rulings in favor of corporations, as the corporation is much more likely to become a "repeat customer" than the consumer. In extreme cases, entire arbitration firms may have a material conflict of interest.<ref name=":2" />
 == Examples ==