One of the biggest issues in any case is the establishment of fair and equal conditions for both parties. Our justice system rests on ideas of fairness and objectivity. Ideally, those values are strived for at every turn within the system.
There has been no tool more effective to achieve that end than the Seventh Amendment to the Constitution, guaranteeing a Constitutional right to a jury trial. Enforced arbitration tramples on the rights guaranteed in that sacred document. The Supreme Court of The United States as well as the Texas Supreme Court have been more than willing to bow to big money in affirming their right to rob citizens of this most sacred right.
A recent ruling by the Supreme Court calls into question that sacred right. The Court’s recent 5-3 decision in favor of American Express establishes that corporations have the right to include forced arbitration clauses within the contracts of consumers or employees.
These clauses essentially determine that if an employee or consumer takes issue with the corporation’s behavior or if he or she is somehow impacted and seeks action against the corporation, they cannot do so in the typical fashion - that is, through the courts. Instead, they must negotiate in the manner that the corporation sees fit – not through the justice system or lawsuits, but through private arbitration hearings arranged carefully by the corporation.
In this sense, corporations can essentially add a clause somewhere deep within a contract that ensures any problems with their behavior will be mediated through the lens of their choosing. Conditions will no longer guarantee any pretense of objectivity, and will exist based on the subjective choice of arbitrator by corporations often looking to protect their own interests at great cost.
What these private arbitration clauses also do is remove any form of flexible agency from the consumer or employee. If an employee or consumer feels wronged in any fashion, they must subject themselves to what the corporation demands, and not seek the action they feel is warranted. The corporation picks the conditions, and thus fairness is in no way ensured for the smaller party.
Though some private arbitrations may follow a fair path, many may be chosen for specific reasons by a power-wielding company. And with that in mind, it is difficult to believe that a ruling like this will ensure fairness for wronged employees or consumers in the future, consumers that may find themselves in a locked arbitration hearing they never expected.