One of the most controversial and widely debated aspects of ADR involves the appropriateness and fairness of binding arbitration in the consumer context, particularly when the arbitration clause is inserted in a contract of adhesion, wherein the consumer has no bargaining rights. Consumer advocates and corporate interests have squared off a number of times on opposite sides of the issue. The consumer groups view forced arbitration as an effort to strip the consumer of one of the last basic rightsthe right to sue. The corporate defenders, on the other hand, argue that the right to sue is illusory in small disputes and that a quick and fair arbitration process is the best alternative and in the best interests of the consumer.
A middle ground for some of the consumer groups has been the pursuit of arbitration class actions, a process, they argue, where the consumer might come a little closer to leveling the playing field. Consumer advocates claim that it’s unrealistic to expect a consumer to be able to economically justify an arbitration proceeding in a small matter, and that class actions might allow all wronged consumers to meaningfully participate. Recent court decisions, however, especially at the highest level, have thwarted efforts to bring about class action arbitrations.
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