2006/Vol. 5 No.1 - Hamline Law - Hamline University

74 THE JOURNAL OF AMERICAN ARBITRATION [Vol. 5:1
statutory claim, a party does not forgo the substantive rights afforded by
the statute; it only submits to their resolution in an arbitral, rather than a
judicial forum.” 303 The Gilmer Court held that, “[a]lthough all statutory
claims may not be appropriate for arbitration, ‘[h]aving made the bargain
to arbitrate, the party should be held to it unless Congress itself has
evinced an intention to preclude a waiver of judicial remedies for the
statutory rights at issue.’” 304
G. Lack of Transparency
If arbitration involves a socially sensitive area, should the arbitration
be open to the public? 305 An arbitration hearing is closed—open only to
parties, advocates and witnesses except by agreement of the parties that it
be open to the public. Arbitration matters are not transparent. But this
can be a problem. A particular arbitration decision might have a
dramatic impact on society. Lack of transparency can mean a decision is
made where the pubic is affected but the public does not know about the
Employees who are forced to arbitrate their claims give up the right to a jury trial.
Maltby, supra note 8, at 37. The right to a trial by jury is such an important right
that many argue that employees should not be forced to waive it as a condition of
employment. Id. However, a trial is not a reality for most employees. Id. at 57. A
plaintiff must have approximately $60,000 in provable damages before a lawyer
will accept the case on a contingency basis. Id. In addition, many attorneys charge
a retainer of about $3,000 and require the plaintiff to pay all out of pocket expenses
(estimated between $10,000 and $25,000) as they occur. Id. Approximately 95%
of employees who seek legal representation for an employment discrimination claim
are not able to retain legal counsel. Id. at 58. Due process may also be
compromised when the employer has the ability to choose the only arbitrator. Id. at
33. In 1994, the American Bar Association developed a due process protocol for
arbitration which has been adopted by the AAA and JAMS/Endispute. Id. at 39.
The American Civil Liberties Union, National Employment Lawyer’s Association,
and the AFL-CIO were involved in the development of the protocol. Id. A fair
arbitration process includes: “(a) a neutral and unbiased arbitrator; (b) right of the
employee to an equal role in selecting the arbitrator; (c) right to counsel; (d) right to
reasonable discovery; (e) identical remedies to those available in court; and (f) a
written opinion.” Id.
303. Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors Corp v. Soler Chrysler-
Plymouth, Inc., 473 U.S. 614, 628 (1985)).
304. Id.
305. Maltby, supra note 8, at 42-43. When employers know that an arbitration
proceeding will remain private, they have less incentive to change discriminatory
policies, because there is not a risk of adverse publicity. Id. However, employees
may also benefit from the privacy aspect of arbitration if the claim involves a
sensitive personal matter. Id.