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Arbitration Is Fair and Efficient for Consumers

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The Consumer Financial Protection Bureau has released phase one of its study on the use of mandatory arbitration clauses in connection with consumer financial products and services.

Among the study's preliminary findings, the CFPB determined that larger institutions are more likely to use arbitration clauses, arbitration clauses in account agreements can often be complex, and these agreements often contain class-action waivers. The preliminary study, released in December, read alone might also suggest that arbitration clauses could disadvantage consumers.

However, because it was only a preliminary look, the report failed to paint a complete picture of the costs and benefits of arbitration. For nearly 90 years, arbitration has been a valuable means for consumers to quickly and easily resolve disputes in an efficient and affordable manner. That part of the story was not told.

The Dodd-Frank Act requires the CFPB to conduct a study of the use of pre-dispute arbitration clauses in consumer markets. The Act also provides the CFPB with the authority to issue regulations on the use of arbitration clauses if it believes doing so is in the public interest and for the protection of consumers, consistent with the results of the study.

Arbitration is an alternative to litigation that enables parties to amicably resolve legal disputes outside of the court system. Congress recognized the importance of arbitration as a means of resolving consumer disputes when it enacted the Federal Arbitration Act in 1925. Most states also have laws and procedures for arbitrating disputes.

Consumer financial products that often have arbitration clauses include credit cards and checking accounts. In arbitration, a dispute related to these products can be resolved in a matter of months, where the same dispute might take years to resolve in court. In general, arbitration is also a less costly means of resolving disputes than litigation. The reduction of litigation costs, particularly costs associated with class-action litigation, benefits both consumers and companies. Many of the major organizations that administer consumer arbitrations have rules and procedures to ensure that the consumer will be treated fairly and to require the company to pay all but a small fraction of the costs of arbitration. Businesses have found that arbitration minimizes the disruption and loss of goodwill that often results from litigation.

Several previous empirical studies have concluded consumers fare at least as well in arbitration as they do in court, and in many cases better, and at a fraction of the cost. One study of hundreds of consumer arbitrations found that consumers won some relief in more than half the cases filed. Moreover, the upfront cost to the consumer was far less than the fee required to file a complaint in the federal courts.

For all of these reasons, we are pleased the CFPB now says it will compare the costs and benefits to consumers from arbitration with those derived from individual and class-action litigation. We are confident that a balanced professional study will conclude that arbitration is a fair and efficient way for individuals to resolve disputes with financial services companies. Prohibition or excessive regulation of arbitration could leave consumers with only a slow moving and costly court system, where the consumers often receive little relief.

Steven I. Zeisel is an executive vice president and general counsel at the Consumer Bankers Association.

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Comments (3)
Apparently the author has never tried an arbitration case. I have, twice, in securities matters involving several tens of thousands of dollars. There was no discovery for my investor client, and we went to the hearing blind. The arbitrators were chosen from a panel selected by what was then the NASD, now FINRA. All of the members were veterans of the securities industry. My clients felt cheated, both by the stock broker and by the arbitration process.

Forcing the solution of cheating on a case by case basis may be faster in a one person scam, assuming that the panel will put aside its pro-industry bias. It won't and can't work on systematic abuse, which is the big problem created by the class action clause. It's stupid to say that the right way to handle systematic abuse is arbitration for thousands of people who lose a few bucks per transaction.
Posted by masaccio | Tuesday, May 06 2014 at 1:32PM ET
And pigs can fly . . .
Posted by Mr_Chips | Tuesday, May 06 2014 at 6:23PM ET
If arbitration was such a great deal for consumers--how do you explain that every consumer organization in the country opposes forced arbitration.

I know of no consumer advocate who would willing choose arbitration as the means to resolve a dispute with a corporate entity. The arbitration forums are generally controlled by corporate interests. The rules and system are designed to make it more difficult for consumers to receive justice.

Our right to jury of our peers has been hijacked by the Supreme Court & hopefully the CFPB will end the Court's tyranny.
Posted by gjp | Wednesday, May 07 2014 at 3:41PM ET
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