Arbitration clauses vs. inviolate right to Jury trial

[David Merrill]

"They come in through the Utilities."

[David Merrill]

It occurs to me that the Constitution(s) expressly protect the right to contract much more clearly as an inviolate right, than the ability of innovation and refusal for cause.

[Jethro]

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?

[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

[Jethro]

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.

I take it you agree that it may be possible the arbitration clause may not apply in certain circumstances like I have suggested. I'm glad to hear that since that is my primary concern.

The problems I see with arbitration are:

1. No appeals process.
2. Cost - it can be very expensive! More so than going to court (at least for me).
3. The controlling "law", standard of review, etc. may be arbitrary. By what standard is the manner decided, and what remedy is available should that standard be violated?
4. As you pointed out, arbitrator bias -- not sure if there is any enforceable provision for arbitrator neutrality.

There are probably more problems I can't think of.

I agree with the Scriptural mode of conflict resolution. But how does that apply when dealing with non-believers (or worse, outright wicked folks)?

[AuAgen]

Court of Record

Many (most?) State constitutions contain the following clause:



However, many contracts include "mandatory" arbitration clauses; that is, language to the effect that in the event there is a dispute, the parties agree to binding arbitration with no other recourse.

Considering that the People's Supreme Law states trial by Jury is inviolate -- something that cannot be violated, period -- does anybody have any experience with cases or authorities in which it was decided whether a contractual agreement to arbitration supersedes the Constitutional guarantee?

Thanks, everyone.

Have you heard of Karl Lentz? Perhaps he may be able to shed some light on this subject matter.

http://broadmind.org/

Shalom

[David Merrill]

Hello and welcome AuAgen;


It is wonderful to have your contributions.

[Moxie]

Have you heard of Karl Lentz? Perhaps he may be able to shed some light on this subject matter.

http://broadmind.org/

Shalom

Lol, Karl will not have patience with questions about interpreting their codes, case law, etc..

If someone calls his show asking about that stuff, he will make background noise while they're talking, then call them "sir" as often as possible. LOL

Suggestion to those curious about Karl's teachings: listen to several of his [3-4 hour long] calls on Talkshoe before calling him so you know how to shape your question and what you're getting into. :-)

[KnowLaw]

Arbitration clauses vs. inviolate right to Jury trial

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.

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.

I would agree with you here, Jethro, without knowing anything of the details about which you speak. Fraud vitiates a contract. I would think that allows one to proceed in law. The fraud must first be proven, though.

Based on the following maxims of law:

A contract founded on a base and unlawful consideration, or against good morals, is null.

No action arises on an immoral contract.

Law arises out of fact; that is, its application must be to facts.

Out of fraud no action arises.

Advice, unless fraudulent, does not create an obligation.

It is a fraud to conceal a fraud

A mandate of an illegal thing is void.

Equal knowledge on both sides makes the contracting parties equal.