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Arbitration Fairness

Per the online NYT of July 13, 2016:

“In arbitration, the rules tilt toward businesses, employment experts say. Instead of judges, cases are decided by arbitrators who sometimes consider the companies that routinely bring them business their clients, according to interviews with arbitrators…. Of 3,945 employment cases decided by arbitrators from one of the nation’s biggest arbitration firms, plaintiffs won about 31 percent of them when employers had only one case before the arbitrator, according to (the) study. The win rate plummeted by more than half when companies had multiple cases before the same arbitrator.”

Presumably, employees won approximately 15% of the arbitration cases where there was more than one case against the given employer before the given arbitrator. Like some statistical analyses (e.g., profiling), this begs the question: How many cases should the employees have won? 50%? What would an impartial system look like; how would it behave?

Nonetheless, the big picture is public transparency. How can an inspection and oversight system, including arbitration that decides the economic and social circumstances of so many complainants about the conditions and practices of their (former) employment, a situation in which employee power and resources are generally overwhelmed by employer power and resources, be assessed in a manner deeper than broad statistical measures of outcomes?

In the field of fraud examination and financial forensics the whistleblower would ordinarily be deemed a key player on any relevant task force (e.g., PCAOB). However, whistleblower observations could be concealed under the confidentiality of arbitration. Who benefits?

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