In a recent commentary, the New Jersey Law Journal’s Editorial Board extolled the virtues of the arbitration process to resolve disputes for both consumers and employees. (“Supreme Court Must Reverse Appellate Division’s Rogue Ruling on Arbitration Clauses,” NJLJ, Nov. 19, 2018.) Let’s be clear: Mandatory arbitration deprives workers and consumers of their rights, most importantly their constitutional right to have their disputes decided by a jury of their peers.
While the Federal Arbitration Act has been law for decades, the misconception advanced by some attorneys and the Editorial Board is that it is somehow favored over the constitutional right to a trial by jury. It is not. Its goal was to correct the refusal of courts to enforce arbitration awards. New Jersey, as other states, has the right to subject arbitration awards to ordinary contract principles. This is exactly the reason why the Flanzman case was correctly decided.
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