"Forcing More Litigation Isn't The Answer To Litigation Abuse"

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July 30, 2019

The director of the Progressive Policy Institute’s Center for Civil Justice wrote in an op-ed that “now is not the time to ban [arbitration], but to enhance it.” 

Phil Goldberg, who also serves as the Managing Partner of the Shook Hardy & Bacon law firm’s Washington, D.C. office, pointed to several bills making their way through Congress that could restrict or even ban arbitration. But the "real-life experience," he said, is the opposite of what opponents, like trial lawyers "who file lawsuits for a living," say it is. 

He said arbitration is a “useful alternative” to litigation because it allows consumers, employees, and businesses to “reach quicker, less combative, and fairer resolutions.” He cited a study from NDP Analytics, and released by the U.S. Chamber Institute for Legal Reform, that found employees are three times more likely to win in arbitration than litigation and also receive higher awards, on average.

Arbitration is "geared toward resolution" - meaning the rules are less formal and tailored to the particular dispute. It is "not all-or-nothing warfare," like class action litigation, and "plaintiffs receive individual attention." The American Arbitration Association and the Judicial Arbitration and Mediation Services have rules to ensure fairness. This makes the process significantly less expensive for all those involved. There no incentives for plaintiffs' lawyers to "try to leverage the costs of litigation to generate settlements and attorney’s fees regardless of the merits," like they do in litigation.

Since litigation “has become much too expensive and lawyer-driven,” Goldberg argues, Congress “should not get in the way if people contract to avoid the expense and abuse of litigation.”