Florida Arbitration Blog Takes Issue With Texas Turn of Phrase

Earlier this morning, the Florida Arbitration Blog, a blog we read regularly and think highly of, posted a fairly critical review of an article in the Defense Research Institute’s magazine that apparently laments the pervasive use of mandatory arbitration as an assault on the jury system. Since the DRI does not allow non-members access to its magazine, Florida Arbitration Blog could not share a link to the article itself. Since we are not members of DRI, we have not read the article but instead rely on FAB’s summary.

At any rate, this interests us because the offending article was written by “the Texas representative to the [DRI]” (who was un-named in the review). The Florida review was more critical of the article’s tone than its content:

In the April 2008 of the publication, “For the Defense,” the Texas representative to the Defense Research Institute claims that arbitation and ADR “meant simply ambush your adversary and steal his cattle, wife and daughters, and be done with it.” This anachronistic sentence is probably meant to be more Texan than misogenistic, but it is an interesting viewpoint coming from a DRI representative.

Taken out of context, it is impossible for us to evaluate whether or not the quoted language was fairly reflective of the piece as a whole, but we do take some issue with FAB’s critique of the DRI article.

The Florida Blog acknowledged that the concerns at the root of the article are in fact widespread (if, in their opinion, overstated); the blog seemed more worried about the forum for the discussion than the substance. According to the Florida Blog, the article in question was apparently out of line because it raised concerns about the pervasiveness of binding arbitration in a publication aimed at lawyers who are often hired by clients who put this system in place in the first place, who are often charged with enforcing arbitration clauses, and who simultaneously offer advice on how to enforce arbitration clauses. I actually find it refreshing that DRI has vocal representative members interested in the long-term affects of a policy which, arguably, implicates the jury system as a whole, a system which is in fact fundamental to American representative democracy.

The Florida Blog, while acknowledging an increasing criticism of over-use of the arbitration process, says that “I am unaware of any serious suggestion that arbitration was intended ‘curtail or do away with the jury system.'” This seems to me to be a bit of a dodge. Any given arbitration clause is, of course, specifically designed to do away with the possibility of a jury trial with respect to the transaction to which the clause relates. Every case that is arbitrated curtails the jury system to some extent. Here in Texas, as this blog has tried to objectively report, the caselaw has been overwhelmingly pro-arbitration. That being the case, it does seem important to carefully consider the implications. In other words, whether or not arbitration as a construct was “intended” to curtail the jury system, it is in fact curtailing the jury system to some degree. We ought to be curious to what degree, and we ought to discuss whether or not, and to what extent, this is a big deal.

Again, I have not had the opportunity to read the article in question, so I do not know if the Texas DRI representative’s language was over the top, as suggested by the Florida Arbitration Blog. I do know, though, that a discussion among the bar (even the defense bar) about the long-term ramifications of commonplace binding arbitration is something we consider to be of vital importance. To that end, we hate to see an involved lawyer get criticized for raising the issue, even if the manner in which Texans sometimes write ruffles some feathers for its apparent “anachronism.”