8/20/2012 2:15 PM ET|
Arbitrate your life away
Mandatory-arbitration clauses are bad news for consumers who would otherwise take a company to court over a dispute. They're also a disturbing sign of growing corporate power.
America is a land of choices.
We don't have just one or two breakfast cereals on supermarket shelves; we have dozens. Want a credit card? Thousands of offers await. A cellphone? Choose from a dizzying array of options, and then pick how many minutes, how many texts and how much data you want to consume each month.
To buy that phone, though, you usually have to sign a contract giving up your right to go to court if you later have a dispute with the carrier. Same deal with many credit cards. Mandatory arbitration clauses are now part of employment deals and brokerage service agreements -- plus, they're standard if you want health care.
You don't have to agree to mandatory arbitration if you want cereal. At least not yet.
As much as we Americans enjoy our freedoms and our ability to choose, it's kind of baffling how we're giving up our right to the justice system with hardly a peep.
Our Supreme Court certainly isn't helping us stand up for ourselves. In two recent decisions -- CompuCredit vs. Greenwood last month and AT&T Mobility vs. Concepcion last year -- the justices endorsed the idea that corporations can force customers into mandatory arbitration, pretty much no questions asked.
Then again, this Supreme Court views corporations as people. Maybe the justices don't want to hurt corporations' tender feelings.
I've got no such compunction. Corporations are being bullies, and I really, really hate bullying. The problem is that most of us aren't going to realize we've been bullied until it's too late.
"We're a click-through society" is how Delicia Reynolds Hand, the legislative director for the National Association of Consumer Advocates, explains it. "People are clicking through (the mouse-print legal agreements) to get to what they need. . . . When they have a dispute with a company, they've already signed away their right to go to court."
Even if you realize what you're giving up, you don't really have much choice if you want the phone or the credit card or the job or the medical treatment. The other carriers, issuers, employers and doctors typically have the same clause. Your choice is to sign or do without.
It's that mismatch of power that burns my buns.
I might feel differently if there were any proof that mandatory binding arbitration offers a fair outcome. Consumer advocates laugh out loud at the notion that it might, since it's the companies that select the arbitration companies, and he who pays the piper calls the tune.
But we really have no way to know. That's because arbitration proceedings and their outcomes are typically kept secret.
In California, the only state where arbitration outcomes have to be disclosed in detail, the results aren't encouraging, at least in the debt collection field. A Public Citizen study found that the National Arbitration Forum, a company that handled collection disputes, had ruled in favor of creditors 94% of the time.
The ratio was even scarier when it came to arbitrations with Bank of America customers. A lawsuit filed by San Francisco's city attorney alleged the bank had forced people who were behind on payments into mandatory arbitration that was rigged in favor of the bank. The arbitrator decided in favor of consumers in only 30 cases out of 18,000, or 0.2% of the time, according to the lawsuit. The bank recently agreed to pay a $5 million fine to the city without admitting guilt.
The National Arbitration Forum may have been the worst offender, of course. It was sued by Minnesota's attorney general, who alleged the company had business ties to major collection firms and wasn't the impartial arbitrator it had claimed to be. The company agreed to stop handling consumer cases, and, in the wake of the scandal, several major credit card issuers agreed to temporarily stop enforcing the mandatory-arbitration clauses in their contracts.
But the fact that the National Arbitration Forum could do business at all shouldn't give anyone comfort -- least of all the companies that argue that arbitration is just as good as going to court, only faster and cheaper.
It's the "cheaper" part companies really like, since they don't have to deal with pesky class-action lawsuits that cost them money and (often) force them to clean up their acts when they're treating consumers unfairly. Companies warn that the end of mandatory arbitration would result in higher prices for consumers. Give up your rights so you can save a few pennies, in other words.
If binding arbitration is really a better option -- cheaper, faster and just as fair -- then companies should let it compete in a free marketplace. Let us choose whether to have disputes resolved that way, rather than forcing it on us as our only option. That's the way binding arbitration used to work, before companies figured out they could strong-arm us into signing our rights away.
One way to curb corporate power would be to have Congress step up -- OK, OK, you can stop laughing now. Big Money has such a stranglehold on our lawmakers that only public opinion -- a big, roaring mass of public opinion -- can force Congress to defy its corporate funders. We haven't got that at the moment, again because most people don't realize what they've lost.
Another possible solution lies in the newborn Consumer Financial Protection Bureau. The Dodd-Frank financial reform act requires the bureau to study mandatory-arbitration clauses, and the bureau has the rule-making ability to limit or even abolish the clauses in consumer contracts.
No wonder the big banks have opposed the agency. It's our best hope of getting back our power of choice. Keep your fingers crossed.
Liz Weston is the Web's most-read personal-finance writer. She is the author of several books, most recently "The 10 Commandments of Money: Survive and Thrive in the New Economy" (find it on Bing). Weston's award-winning columns appear every Monday and Thursday, exclusively on MSN Money. Join the conversation and send in your financial questions on Liz Weston's Facebook fan page.
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