On October 6, the Alliance for Justice will release Lost in the Fine Print, a short documentary featuring Robert Reich criticizing “forced arbitration.” (A description and trailer for the movie, plus information about teaching resources and a petition, are available here.) AFJ uses the term “forced arbitration” to refer to what is more commonly known in the ADR community as mandatory pre-dispute arbitration, focusing on arbitration agreements in consumer and employment contracts. The movie apparently will highlight three cases in which individuals were negatively impacted by arbitration, and describe the recent Supreme Court cases validating mandatory arbitration–and class waivers–in the consumer context.
Without seeing the film, I can’t comment on its merits, but I am encouraged that the issue of mandatory pre-dispute arbitration is making its way into the public consciousness. Whether individuals are treated fairly in arbitration with corporations is a hotly contested question. Regardless of where one stands on that question, however, the expansion of mandatory arbitration has significant consequences for our legal system–both for the continuing vitality of the right to a civil jury and for the efficacy of class actions as a deterrent to corporate wrongdoing. So far, there has been little public recognition of or dialog on those issues. If this film helps provoke greater awareness of the prevalence of consumer and employment arbitration, it will serve an important function.