Playing Fair

The United States Congress moved one step closer this summer to passing the 2007 Arbitration Fairness Act (AFA), which would restrict manufacturers, employers and franchisers from imposing contractual terms that force individuals to resolve their disputes before arbitrators.

On July 12, Sens. Russell Feingold and Richard Durbin introduced S. 1782, the Senate version of the AFA. Rep. Hank Johnson sponsored H.R. 3010, the House version. The bills have been referred to the Senate and House Judiciary Committees.

"It takes almost two years to get a case to trial almost anywhere in the country, and that's hard on individuals who have lost their jobs," she says. "Besides, after eight years of Bush appointees, we have scores of district court judges who take a very conservative view of issues such as harassment and discrimination."

Growing Criticism
Ironically, business may have only itself to blame for the AFA's far-reaching impact. Since Congress enacted the Federal Arbitration Act (FAA) in 1925, contracts mandating binding arbitration of disputes have been "valid, irrevocable or enforceable." For the most part, courts limited the rights of consumers and employees to invalidate these clauses by requiring them to meet the burden of proving that fraud had induced them to agree to arbitration.

Egan says it doesn't much matter either way. "The AFA is a remedy that provides no solution," she says. "When I first saw the legislation, I thought it was very exciting, but on further reflection, I don't think putting an additional burden on the courts will assist in a meaningful way those whom the legislation means to assist."


Julius Melnitzer

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