Mitigating Mass Arbitration: Revising Arbitration Clauses and Rethinking Defense Strategies

Class action waivers and mandatory arbitration clauses in consumer, employment, and service contracts have not always generated the savings and efficiency businesses hope for. Instead of a class action, defendants may face thousands of simultaneous individual demands for arbitration, resulting in high costs and payment of nonrefundable fees.

Non-meritorious claims are often impossible to weed out before arbitrations commence, incurring fees and costs. Many disputes arise over arbitrability, but courts are divided over who decides those issues and often view defendants' hardships as bargained for results. Mass arbitration protocols have been developed but may not apply or be enforceable.

Nonetheless, defendants' counsel have a range of options for stemming and managing mass arbitration, both in the contract and in the proceedings themselves.

Listen as this panel of class action attorneys discusses what counsel must know about mass arbitration, mass arbitration protocols, and practical options for defendants seeking to address mass claims.