Jamie Leigh Jones & “Halliburton” III

Stephanie Mencimer jumps on the Jamie Leigh Jones bandwagon against arbitration (Dec. 12, Dec. 20) and carefully makes a misleading case:

Employment lawyer Cathy Ventrell-Monsees testified before Congress in October that AAA data show that between January 2003 and March 31, 2007, of the 39 Halliburton cases that went all the way to a decision, Halliburton won 32, a win rate of 82 percent. Plaintiffs in employment litigation face a high bar in court trials as well, but even so, that figure is very high. Employers win about 64 percent of all employment cases at trial in federal court and about half in state court, according to data from the Justice Department’s Bureau of Justice Statistics (BJS).

The problem here is that this is apples and oranges: the 32 arbitration cases include cases that are dismissed on summary judgment, whereas the employment discrimination trials (which constitute well under 10% of all employment discrimination claims brought in court) necessarily omit the decisions where the plaintiffs lost on summary judgment. Moreover, it excludes the 96% of cases submitted to ADR that do not result in a full-fledged arbitration because the employee received a favorable result in mediation. (And that’s before we get to the fact that an arbitration decision is final, while the BJS statistics have no follow-up to see what happens on appeal to those larger plaintiff victories.) As multiple studies show, the typical employment plaintiff does far better in arbitration than in court, for far less expense.

Mencimer also repeats the canard that arbitration is problematic because it is “secretive,” though her ability to retell the case of Jamie Jones refutes that. I also note that earlier this week, I sent a request to Jones’s attorney, Todd Kelly, for a copy of her arbitration filings. (Recall that Jones moved for summary judgment in the arbitration, and only filed in court after helping to choose an arbitrator and spending fifteen months of discovery litigating the arbitration.) He hasn’t responded. If Jones’s arbitration is secret, it’s because she has chosen to make it so.


  • If the employer is paying the arbitrator (as the article states), and the arbitrator knows this, then there is an incentive to go easy on the person that is putting food on your table. Now that is a problem.

    And I think you are being too dismissive of the secrecy issue. If the stuff isn’t readily available in the courthouse folders, it makes it much more difficult to ferret out the details of what is going on.

  • The government pays judges, and no one legitimately complains that judges go easy on the government in FTCA or Bivens actions; same for administrative judges and SSDI cases. There’s no reason or empirical evidence to think arbitrators are any less ethical.

    Stuff in the courthouse folders ends up under seal all the time; until a couple of years ago, much of it wasn’t readily available on line. (Transcripts still aren’t readily available on line, and are of prohibitive expense when purchased from court reporters.) Nothing stops a plaintiffs’ attorney with a client in arbitration from posting the arbitration files and transcripts on line: there are numerous web services that do this.

  • If a judge decides against the gov’t that pays the judicial salary, the judge still has a job.

    But if the arbitrator bites the hand that feeds him/her though, then s/he won’t be sitting on too many more arbitrations from that source.

  • By that measure, one cannot trust judges in many state courts—and there is far more evidence of the trial bar placing biased judges on the bench than evidence of biased arbitrators.

    Again, Eric, you make an abstract allegation of arbitration bias. But every arbitration group I’ve seen has substantial safeguards to prevent such bias. Which specific arbitration contract biases its arbitrators? And what is the evidence of such bias that corresponds to the lawless decisions of Madison County or south Texas or the West Virginia Supreme Court?

  • Assuming bias from the fact that the employer pays the Arbitrator is a complete non sequitur. The employer is often required to pay the Arbitration fee (with the exception of a nominal amount that doesn’t exceed the filing fee for a lawsuit). Moreover, most Arbitration procedural rules allow the Employee/Complainant to pay up to half of the fee–though I’ve never heard of an employee doing so.

    Finally, Arbitrators’ decision records are publicly available. An Arbitrator with a record of routinely favoring Employers (or Employees) will never make it past any kind of selection process. If any thing, Arbitrators have a financial incentive to issue split decisions or to develop “moderate” records over time by ruling evenly for employers and employees (which may be why employees do better in arbitration than in court).