NYSDRA has begun “Blogging by the Alphabet” by addressing issues relevant to our membership in alphabetical order. I agreed to tackle the letter “F” for two reasons.
First, I have announced my retirement from NYSDRA and a farewell post seems in order. Farewell is “an exclamation used to express good wishes on parting” so it is appropriate that I say farewell as I leave the staff of NYSDRA.
Second, fairness is a critical concept to NYSDRA. Fairness can be defined as “impartial and just treatment or behavior without favoritism or discrimination”.
We at NYSDRA believe in neutrality of dispute resolution practitioners and in full disclosure of potential conflicts of interest, in order to avoid even the appearance of unfairness. We should never abandon those principles. Furthermore, we should strive to expose and weed out those who attempt to corrupt dispute resolution principles in order to avoid litigation or deprive people of their right to due process and justice.
Much is being written these days about arbitration and the belief that it is being used in ways that deprive people of their rights, like the right to due process. This is being done in some private contractual relationships that consumers may enter into unwittingly.
Some contractual dispute resolution clauses are fair while some others seem to go out of their way to make the processes burdensome and inaccessible. Dispute resolution clauses which waive the customers’ right to proceed in court, their right to a jury trial, and their right to participate in a class action when coupled with burdensome or unfair dispute resolution provisions usually result in consumers who are frustrated and discouraged from accessing dispute resolution to solve disputes. Imagine being a consumer going to an arbitration over a dispute with Company X and finding out the arbitrator is an employee of that very company. Do you think you will believe the dispute resolution process is fair?
These draconian consumer contract provisions do deprive people of their right to due process and are inherently unfair. The pursuit of justice by consumers is frustrated and may ultimately be denied.
One of my many parting wishes for NYSDRA is for success in its continued commitment to the fairness of the processes in the services we provide. I hope NYSDRA will be able to provide leadership in a struggle to keep our dispute resolution processes (including arbitration and mediation) as fair as fair can be.