There is something lurking in nearly every contract you sign or agreement you enter into as a consumer: an arbitration clause. Arbitration is a substitution for having your day in court. You are stripped of important legal rights, including your constitutional right to sue for damages and have your case heard in a court of law. From the viewpoint of consumer rights advocates, signing a contract that contains an arbitration clause is never a good idea. As with any other term of a contract, arbitration clauses are negotiable and may be stricken from any contract. If a business tells you that arbitration is mandatory or that their “form contract” cannot be modified, exercise your right as a consumer and walk away.
Nearly every contract, service agreement, and transaction that we enter into as consumers with a business contains what is referred to as an arbitration clause. Most consumers, including many attorneys, unwittingly sign these contracts containing arbitration clauses, and in doing so, waive extremely important constitutional rights – namely, the right to proceed in a court of law with a claim and have the case decided by a jury of your peers.
The reason businesses favor arbitration comes down to their desire to have an upper hand in limiting or preventing any award of damages. Most arbitrations are conducted and decided by one to three arbitrators who hear the evidence and make a ruling at the conclusion of the case. The individuals who serve as arbitrators are frequently biased in favor of the industry they serve and against consumers. For instance, an arbitration clause in a nursing home admissions contract may require that any subsequent claims be arbitrated and decided by three members of the health care community – possibly individuals who have ties to the entity which you are bringing the claim against.
More troubling — you may find that after signing a contract or agreement for a consumer product or service that contains an arbitration clause, in the event a dispute later arises, you have unwittingly waived you right to bring an action in the Florida courts to enforce your rights, and instead, must travel to a distant state to have your case arbitrated.
What is a consumer to do? Most lawyers advise that consumers should freely cross out and initial arbitration clauses in contracts for goods and services. If the company refuses to do the deal, then take your business elsewhere. Or, ask the representative to speak with his or her superior about the modification. Most businesses do not want to miss even one sale in this fragile economy. Buyers need to embrace the fact that most terms are negotiable and on the table when they approach any purchase. They also need to stand ready to exercise their most powerful right as a consumer – the right to walk away from a prospective purchase if the merchant refuses to make reasonable concessions. If the deal falls through, instead of giving in to the merchant, consider leaving your name and telephone number and tell the sales representative that your offer will remain open for 24 hours and to contact you should their company have a change of heart. You might be surprised to discover just how many follow up calls you later receive from businesses who are willing to adhere to your simple request.