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Should You Fight Mandatory Arbitration?

No one likes to be backed into a corner, including mandatory arbitration.

It's one thing to agree to arbitrate, but quite another to be sent to that corner. With no place to flight, most of us want to fight.

Usually, you will lose fighting against a statute that requires arbitration. But if the other party is trying to force you to arbitrate in the wrong case, there are more ways get out of it these days.

Mandatory Arbitration

Options are limited when the government requires mandatory arbitration. The Federal Arbitration Act, for example, is hard to challenge.

The U.S. Supreme Court weighed in on that statute in Clarksburg Nursing Home & Rehabilitation Center v. Marchio. An appeals court said that nursing homes could not enforce arbitration of personal injury or wrongful death cases, but the High Court unanimously struck down that decision in 2012.

Times, of course, have changed. Courts and lawmakers are carving out exceptions, especially when it comes to sexual harassment and discrimination cases.

The U.S. Supreme Court is expected to give new guidance this term in National Labor Relations Board v. Murphy Oil USA, Inc.

Refuse to Arbitrate

If you refuse to arbitrate on the right grounds, the courts will back you up. Here are some keywords to use when researching your motion:

  • Unconscionability
  • Unequal bargaining
  • Hidden terms

Federal courts also have their rules, which include discovery to find out if you have a shot.

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