This guest-post, a synopsis of “Let’s Talk About Arbitration” by Attorney William Goren from his blog, Understanding the ADA. The original post discusses issues pertaining to arbitration of claims arising under the Americans with Disabilities Act. The author assumes that readers know the difference between arbitration and mediation. Covered points include these:
- Can an ADA claim be subject arbitration?
- Are there situations in which an arbitration agreement is deemed unconscionable?
- Can an arbitration agreement assert that an award cannot be challenged for any reason?
The post also discusses:
- Whether an arbitration agreement covers ADA matters will depend upon how it is phrased, but if phrased broadly enough, an arbitration agreement can cover ADA matters.
- An arbitration agreement can be held unconscionable, but proving that an arbitration agreement is unconscionable is not an easy task.
- An arbitration agreement that prevents any challenges whatsoever to the award may well be declared against public policy (It was in Georgia, and Georgia very closely follows the Federal Arbitration Act).
- The Second Circuit goes with the stay, but the U.S. Court of Appeals are split on this. Ultimately, it will all come down to what “shall,” means.
- In a comment the author also notes a recent California Supreme Court case concluding that the Federal Arbitration Act preempts state requirements as to how notification is given that an agreement is subject arbitration (font size for example).
There are several takeaways noted in the blog entry, with a big one being that just because a case goes to arbitration doesn’t necessarily mean that the plaintiff loses. For example:
“In our first case, Whit v. Prosper Funding LLC, providing the plaintiff can show That Prosper Funding LLC is a place of public accommodation, the plaintiff, in my opinion anyway, could very well win at arbitration due to the effective communication rule, which we have discussed previously. “
While not covered in the original blog entry, the author notes a recent California case concluding that the Federal Arbitration Act preempts state requirements as to how notification is given that an agreement is subject arbitration (font size for example).