Is Mandatory Arbitration Unpatriotic?

After a one-week jury trial in Reading, Pennsylvania, a juror in an age discrimination case our firm brought against AT&T said this, on the record:

I just think both lawyers on both sides did an outstanding job along with their assistants, and I’m just really impressed with the jurors that I worked with, some of them are younger, some middle-aged, everybody did a great job, and I’m proud to be an American right now.

Two weeks later, an African American female suing her former employer for race and sex discrimination in Philadelphia said this about the federal magistrate judge (white) during a lengthy settlement conference: “Coolest judge ever.”  And that was before the case settled.  The courtroom where the parties convened was in Philadelphia, a short walk from Independence Hall.

Both of these events got me thinking about mandatory arbitration and how it is taking away from individuals (jurors and litigants) the ability to experience our country’s amazing system of civil justice, built on the Seventh Amendment right to a jury trial.  In an age where trust in our government and institutions is apparently declining, there may not be a better way to restore confidence than experiencing, first hand, the jury trial system.

Compare the compulsory arbitration system that companies are forcing on employees with the jury system.  In arbitration, the individual plaintiff learns that she no longer has a right to a jury trial (yes, the Supreme Court seems far less concerned with upholding the Seventh Amendment than it does the Second Amendment).  Why, she asks her lawyer?  Because you signed a piece of paper that you were told to sign by your company.  But, she pleads, I HAD to sign that or lose my job, and I have a family to support.  True, says the lawyer, but it doesn’t matter because basically the major corporations of the U.S. and the Chamber of Commerce got the Supreme Court to rule that they can block you from a jury trial because, well, they were losing jury trials.

Wow, she says, I guess that figures since money controls everything.  She then asks, who will decide my case if not a judge and jury?  The lawyer responds: a lawyer who is in the business of handling these arbitrations and whose likelihood to be chosen as an arbitrator or a mediator depends to a significant extent on whether companies (the repeat clients of the employment law arbitration/mediation process) want the lawyer to be the arbitrator or mediator.  But that isn’t fair, she says—it seems rigged against the individual employee.  Well, concedes the lawyer, it is not fair, and you are right—but it is the playing field we have been forced to play on.  The client in arbitration will never see a judge and never see a jury.  The arbitration will play out (literally) behind closed doors and the client will tell her children, family, friends, and coworkers that the civil justice system of our country might as well be called Civil Justice, Inc.

Let’s compare that arbitration experience with the experience of the juror and client referenced at the outset of this article.  For them, the trial experience was patriotic and enlightening.  Yes, America does have the most amazing judicial system in the world.  Yes, judges are smart, funny, compassionate, and, most of all, fair and beyond the influence of money.  These jurors and litigants go home and tell their family, friends, and co-workers about the uplifting experience that they had—in a government institution no less (yes, tax dollars at work).

I grew up in a three-generation home in Philadelphia were my grandparents and parents served as jurors.  Perry Mason was on a black and white TV—speaking to jurors.  Henry Fonda was one of twelve Angry Men—but, man, was he persuasive when he flipped that jury. To Kill a Mockingbird inspired.  Being a lawyer was being a person who could speak with jurors—you didn’t need to be growing up with rich people to be a good lawyer because the ultimate decision was made by working class people that you understood.  The system was class-blind and beyond the influence of money.  It made me want to become a lawyer and made me feel proud to be a lawyer, even when the jurors found against my client.

Mandatory arbitration is taking that pride, passion, and patriotism away from people. It is depriving citizens of seeing first hand our amazing system of civil justice.  The writers of our Constitution, sitting here in Philadelphia, might have known a thing or two about the importance of a jury system in helping people have confidence in this country’s enlightened system of justice.  A jury trial might be the best civics lesson any American can have.

Stephen G. Console, Esq. is partner of Console Mattiacci Law, LLC. Console Mattiacci Law, LLC. Console Mattiacci Law, LLC represents employees in employment related matters, including wrongful termination, sexual harassment, wage and hour claims, employer retaliation, and employee defamation.

With offices in Pennsylvania and New Jersey, the team of attorneys at Console Mattiacci Law, LLC represent individuals throughout the region, including Philadelphia, Montgomery County, Chester County, Delaware County, Bucks County, Camden County, and the surrounding areas.

Contact Console Mattiacci Law, LLC, LLC at (215) 545-7676 for their Pennsylvania office or (856) 854-4000 for a confidential review of your case.