July 23, 2008
Harvard Law School Professor Elizabeth Bartholet ’65 testified before the Senate Judiciary Committee today about mandatory pre-dispute arbitration, a practice often used in workplaces and by credit card companies to ensure that employees and consumers agree to resolve all conflicts through arbitration instead of through the court system.
"Arbitration is by definition a private justice system in the sense that the parties select and pay for the arbitrators who resolve their disputes," Bartholet wrote in her testimony. "There is a risk in this system that one side will be in a position to purchase the justice that they want. My own experience over the past two decades as an arbitrator has led me to conclude that in many instances, corporate players are...benefitting from a system of purchased justice in both the employment and the consumer credit areas."
In her testimony, Bartholet called upon Congress to halt the growing practice of pre-dispute arbitration agreements. Although arbitration is often thought of as a way for "regular people" without the means to navigate the court system to resolve conflicts, she said, mandatory pre-dispute arbitration is flawed because it puts "the big corporate players" in a position of forcing arbitration onto people who simply want jobs and credit cards.
Bartholet also explained how these agreements have undermined civil rights law: "Pre-dispute arbitration…chang[ed] what Congress designed and the courts used to enforce as an important public law protecting large classes of victims against systemic discriminatory practices and deterring employers from continuing such practices, to a private law that can do little more than occasionally correct obvious individual wrongs."
The Morris Wasserstein Public Interest Professor of Law, Bartholet is the faculty director of the Child Advocacy Program at HLS. In addition to her work in arbitration, she teaches civil rights and family law, specializing in child welfare, adoption, and reproductive technology. She has served on the American Arbitration Association’s labor panel since 1980 and the commercial panel since 1995.