Arbitration clauses vs. inviolate right to Jury trial

[Michael Joseph]

Thanks for extensively providing your thoughts, Michael. I think we agree there are some gray areas here, which means that if the matter were brought before a court, its decision could go either way. I'd prefer a more definite outcome, so let me try to focus onto one area: whether the "arbitration clause" is binding if one of the parties has engaged in unlawful conduct.

I agree with your example that in a case of rape, that arbitration wouldn't apply and there would be individual liability for the rapists. But what about a less extreme example, such as an allegation of fraud or conversion? It would seem to me that arbitration would be limited to matters within the contract. But since there is no such thing as a unlawful contract such as contractual provisions for fraud and conversion, any such acts a party does to the other must be deemed to be outside of the scope of a lawful contract and therefore not subject to a contractual arbitration clause.

Do you see where I am going with this?

Jethro,

I like to frame arbitration as Conflict Resolution. There exists a conflict when one party does not perform within the scope of the contract so then that begs what are the Promises established in the contract. And are those legal duties to keep said Promises being performed? If no, then since I agreed to arbitration, I must go there for resolution. I did not like the terms of my contract to act as a Professional Engineer, so I changed the manner in which I contract.

Yes I see the path you have set out upon. This goes to Severability Clause. And I find that if the Arbitration Clause fails the contract might still be valid but Conflict Resolution is at dispute - which may lead to litigation. I can see both the pros and the cons of arbitration and mediation. According to the Scriptures that I try to live by:

We are to go in privacy first [one on one], then if that fails, we go with a witness, [Mediation] and if that fails we go to the Assembly [Arbitration] and if that fails we go to Law [Litigation]. Nevertheless, I can see that no system of conflict resolution is perfect and there are cases where Arbitration would fail even in the face of both parties agreeing to its use. One sees immediately that one party might unfairly benefit from mediation or arbitration - thus the scales are tipped and we see unfair balances. Especially if one of the parties has a relationship with the Arbitrator due to much usage. This of course leads to much usurpation of that system.


Shalom,
MJ