Originally from World Arbitration And Mediation Review (WAMR)

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Comment

THE EVOLUTION OF ARBITRATION WITH
RESPECT TO CONSUMER AND EMPLOYEE
DISPUTES

Richard W. Naimark*

Permit me to offer some context for this discussion [at the
2010 ITA-ASIL Conference] of legislation focused on arbitration
for consumer and employee disputes. Much of what we’re seeing
in the way of trends, criticisms, and attempts at reform in this
area is a result of growth of the arbitral process. By growth I refer
to both numbers and the scope of application; I believe
Congresswoman Sanchez used the word pervasive. Whether
arbitration is really as pervasive as some may claim is doubtful --
it has none-the-less grown quite substantially. The controversy
around the use of arbitration for consumer and employee
disputes then becomes, in some sense, akin to a constitutional
interpretation issue.

What was the original intent of the drafters of the Federal
Arbitration Act ("FAA") so long ago? How do you interpret the
FAA now in this much broader field, a field that now includes
arbitration of consumer and employee disputes domestically, and
BITs cases, internationally? These forms of arbitration were
never anticipated at the drafting of the FAA. They didn’t exist at
that time. This creates some interesting challenges and I do think
-- for those of us who are involved in this arbitration community --
we would not be assuming a healthy and responsible posture if
we simply resist all attempts to bring about such change. I think
we have to be part of the drive for intelligent alteration, tweaking
and improving the system. We must be responsive to the changed
environment.