ADR as Public Policy: Domestic and International Perspectives
Employers and businesses adopt adhesive arbitration clauses as a means to manage the risk of litigation and perceived "runaway" jury awards. Mandatory or adhesive arbitration describes the power of an economically stronger repeat player to impose an adhesive binding arbitration clause on the weaker, usually one-shot, player. Such agreements appear frequently as a condition of some economic relationship, most problematically employment, consumer purchases, or health care. It is such a powerful tool for corporations to manage risk that they are building it into job application forms, personnel manuals, form contracts for employment, and the fine print of consumer contracts and warranties in the United States. Corporations have such vast economic power, and have so consolidated that power through mergers and acquisitions, that employees and consumers are generally unable to evade the arbitration clauses. These stick to them like the alien parasite that looked like a plastic pizza on Mr. Spock's back in an episode of Star Trek. Employees and consumers may choose to refuse to enter into the economic relationship by refusing employment or seeking o purchase goods and services from other sources. However, this requires educating them about what to most Americans is an arcane area of law, and the consolidation is such that, in reality, these choices are few.
Lisa B. Amsler, Combating Structural Bias in Dispute System Designs that Use Arbitration: Transparency, the Universal Sanitizer, 6 Y.B. Arb. & Mediation 32 (2014).