Vol. 75, No. 11, November 2002

Letters

Mandatory arbitration deprives consumers of legal rights

Thank you for printing the informative article entitled "Mandatory Arbitration of Consumer Rights Cases" by Debra Schneider and Michael Quirk (September 2002). With increasing frequency, not only consumers but also employees are being compelled to relinquish their legal rights and remedies through the use of mandatory arbitration provisions.

These provisions are designed to deprive consumers and employees of access to the American judicial system and relegate them instead to a private - and, for them, often far more expensive - arbitration system dominated by their corporate adversaries. In this private system of "justice," there is no right to a jury trial; decisions are made in secret, so there is no public accountability; damages and attorney fee remedies often are severely limited; and class actions frequently are prohibited altogether, making it effectively impossible for individuals to pursue small claims against large corporate defendants.

For the vast majority of individual employees and consumers, agreeing to submit their disputes to this mandatory arbitration system is "voluntary" only in the same sense that choosing to get a job or to have telephone service is "voluntary." Your article sheds light on this significant and growing problem, and it offers useful guidance on how to combat it.

Patrick O. Patterson
Fox Point

Look at why businesses resort to mandatory arbitration

I was disappointed by the one-sided attack against mandatory arbitration, even from a consumer advocacy perspective. This article, "Mandatory Arbitration of Consumer Rights Cases" (September 2002), was full of argumentative statements and innuendo better suited to the editorial page, suggesting that arbitration is 99.6 percent favorable to industry, exceedingly expensive (to consumers), and somehow inherently (and always) unfair. I wasn't aware that all "standard form preprinted contracts ... that businesses use in consumer transactions" are contracts of adhesion. The article catalogues the excess, and implies that it is the norm. My experience as an arbitrator, counsel, and consumer has been quite different. Couldn't a magazine that purports to be for the entire Bar foster a more balanced approach?

I grant that businesses increasingly include mandatory arbitration clauses in contracts involving the sale of their products and services. I suspect that most of us also would agree that a two-track civil justice system is not necessarily a good thing. However, the fundamental policy question is not "the ability of corporations to opt out of the public civil justice system," but why businesses would want to be "privatizing the civil justice system."

Could it be because our court system (especially in some favored jurisdictions) "systematically favors" consumer plaintiffs (study after study shows that jurors enter the courtroom biased against business defendants, and results prove out that bias), encourages litigation rather than resolution (one of the biggest sections in the yellow pages is always the lawyer ads - anybody can sue anyone anywhere at any time about anything at no cost and with no downside risk), is outrageously expensive (with transactional costs to defend, usually attributable to discovery, often exceeding the amount at stake), or exposes companies to bankruptcy through class actions ("aggregated claims," witness the asbestos frenzy), and now, routinely, million-dollar verdicts for negligent (not deliberate) acts, and exorbitant (now billion-dollar) punitive damage claims? We might do well to ask ourselves, with an open mind, why our legal system is the only one like it in the civilized world.

Richard Lavers
Elkhart, Ind.

Correction to toxic mold article

The article "Out of the Dark: The Emergence of Toxic Mold Litigation" (March 2002) contained an error. The second sentence in the first paragraph should read: "A spokesperson for Farmers Insurance has estimated that mold claims for the year 2001 will be more than five times the number of claims for the year 2000 and total $85 million."

The authors thank the alert reader who brought this error to their attention. - WL Editors

Wisconsin Lawyer