Comments on: Jamie Leigh Jones & “Halliburton” III

By: JP

JP — Wed, 26 Dec 2007 13:38:29 +0000

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).

By: Ted

Ted — Sat, 22 Dec 2007 08:56:41 +0000

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?

By: Eric Turkewitz

Eric Turkewitz — Fri, 21 Dec 2007 22:20:09 +0000

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: Ted

Ted — Fri, 21 Dec 2007 17:28:44 +0000

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.

By: Eric Turkewitz

Eric Turkewitz — Fri, 21 Dec 2007 17:19:52 +0000

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.