Bargaining Abilities Of Parties To The Arbitration Agreement

In addition, arbitration makes it possible to make more creative decisions than civil courts can adopt. For example, if you sue your former employer for unlawful dismissal, the court can only award you criminal damages, according to Cole and Blankley. On the other hand, an arbitrator could ask the company to reinstate you in addition (or instead) of compensation. The approach to the change of the franc was then extended to all federal contracts by the Fair Wages and Job Security Regulation 2014 (FPSW Regulation). The FPSW applies to all federal contractors with contracts over $1 million. Like the Franken Amendment, it prohibits these contractors from imposing binding arbitration agreements on Title VII claims or unlawful acts of sexual assault or harassment. Although the FPSW is a significant extension of the franc change to a larger number of employers, it suffers from the same restriction, as it applies only to a limited number of potential employment cases. A federal contractor under THE FPSW could continue to require its employees to sign binding arbitration agreements and simply object to the application of the Title VII agreement and declared claims, while retaining the ability to use mandatory arbitration procedures as a shield against disputes on the basis of FLSA, state laws such as anti-discrimination and laws on wages and hours. or other claims.

Another limitation of the FPSW regulation is that it is entirely possible to challenge it on the grounds that it is contrary to the FAA provisions (as a legal measure, the modification of the franc would not be subject to this argument). Over the past three decades, the Supreme Court has undergone a massive transformation of the civil justice system, with terrible consequences for consumers and workers. The Court allowed large corporations to require customers and employees to be subject to arbitration to adjudicate virtually all kinds of alleged violations of countless government and federal laws designed to protect citizens from consumer fraud, dangerous products, discrimination in the workplace, non-payment of wages and other forms of corporate crime. By delegating dispute resolution to arbitration proceedings, the court now allows companies to write down the rules that govern their relationships with their employees and customers and to design the procedures used to interpret and apply those rules in the event of a dispute. In addition, the court allows companies to combine mandatory arbitration procedures with the prohibition of class actions, thus preventing consumers or workers from associating to challenge systemic corporate wrongdoing. As one judge said, these trends give companies a „Get out of jail free” card for all kinds of transgressions. These trends jeopardize decades of progress on consumer and worker rights. This is why this position contains practical considerations for parties and arbitrators, in order to use negotiation and mediation skills in arbitration, particularly when cross-cultural considerations come into play. The contribution ends with a short checklist to consider in the preparation of the negotiations. As the study cited in this report shows, it is often more difficult for consumers and workers to win their cases before an arbitration tribunal than in a court of law.

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