Abstract
Use of the arbitration clause and arbitral process to gain unfair and unexpected advantages over the adhering party has redefined arbitration. Arbitration can no longer be counted on to provide a fair, efficient, and expert resolution of a claim. Although courts appear willing to provide the kind of review needed to uncover "redefined" arbitration, and various legal mechanisms exist to assist courts in restoring the arbitral process to its core principles, courts can only act if the adhering party has the resources to challenge the agreement in court. Because it is unlikely that such resources will be sufficientto exposemany abusive arbitration provisions, Congress needs to step in. As has been suggested by a number of scholars, the FAA should be amended to regulate the use of arbitration provisions in adhesion contracts. 8s Such amendment should, among other things, require that: (i) the stronger party take steps to make sure the adhering party knowingly and voluntarily agrees to arbitrate; (ii) the stronger party be prohibited from requiring forfeiture of remedies otherwise available for claims brought in a judicial forum; and (iii) the arbitral process be evenhanded. Amendment to the FAA is the only way to ultimately wrest control of arbitration back from those who abuse it; it is the only way to insure that the redefinition of arbitration ceases, the integrity of arbitration is restored, and the rights of the adhering party are protected.
Recommended Citation
Harding, Margaret M.
(1999)
"The Redefinition of Arbitration By Those With Superior Bargaining Power,"
Utah Law Review: Vol. 1999:
No.
4, Article 1.
Available at:
https://dc.law.utah.edu/ulr/vol1999/iss4/1