Arbitration and Money is a Big Secret

One of the more frustrating episodes in Law School occurred when the topic of arbitration came up. I had that uneasy feeling again of looking around the packed lecture hall and knowing that none of these young colleagues, or even the bloviating professor, had gone through arbitration themselves (like I have).

At least one aggressive credit card company in America has stuck into the fine print of their customer agreement a clause that states that all disputes should be resolved in an arbitration court—of their choosing, of course. In other words, when a dispute occurs, this credit card company has set up its own arbitration court, hired its own judge (a retired judge), and set up shop in the middle of upstate New York, where there is no access to public transportation. One set of reported statistics show that the credit card company wins 94% of the cases brought before this arbitration court—I suspect this isn’t entirely true, since the number is probably more like 100%.

Arbitration is presented in Law School as a new, innovative alternative to the traditional litigation process. In the Civil Procedure book used in my class, there was one reference to a critic of arbitration who points out that if one of the litigants is paying for the court, wouldn’t the court then be biased? Am I the only law student in the world who finds this ridiculously understated? Hasn’t one of the major concerns in the history of law been bribing the judges? Now, the bribe to the judge is completely visible in the form of a paycheck.

If my view appears cynical, it’s probably because we have entered an era where cynicism no longer means anything. In my legal writing class, the same topic came up in its text book, and the author (who happened to also be my professor) defended the situation by saying that judges are paid to be professionals, so they won’t be swayed by the money. Al Capone would have been so proud.

Keep in mind that arbitration is the same method depicted in the movie Erin Brockovich as bringing a huge corporation like PG&E to its knees. That might be true when both litigants get to agree on the arbitration court. In my case, there was no notice served of the arbitration itself. Once the credit card company deems the customer is too far behind on payments, the matter goes before their arbitration court. The customer is not served with notice of the arbitration. The default decision then comes in the mail, resembling a piece of junk mail that you might throw out if you are not careful. If you then don’t pay the amount of this default decision, which is usually the full sum of your debt plus a hefty penalty that almost doubles the amount, the matter is brought before a “real” court. I did receive notice of that.

So I went to the “real” court. I called the courthouse clerk the night before and asked if they had record of the hearing. Guess what? They did not. I asked the clerk if I should then stay home, and the clerk said, probably not—come anyway. I did go and, sure enough, there were “hearings” scheduled that day for enforcement of this credit card’s arbitration court: about 50 of them. I think only one other person beside myself showed up for this. The judge might as well have been carrying on these “hearings” out of a broom closet. When my turn came and I explained to the judge (a T14 alumnus—I looked it up) that I was never served for this arbitration court, he looked at the credit card company’s lawyer, and she reached into a briefcase saying “yes he was,” attempting to pull out her “evidence.” The judge simply waved his hand, as if it wouldn’t be necessary to see the “evidence.” I don’t know what “evidence” they had that I was served, but I know I never signed anything, nothing was ever “posted” on my apartment door, and I certainly was never served “in person.” The judge sent his “order” to me in the mail six weeks later, essentially finding that I had been served and the arbitration default judgment against me had his stamp of approval.

OK, this is a whopper of a tale that cannot be fully related during my law school’s “semi-Socratic” method of mulling through basic legal principals. Let’s face another burning fact: I owed the credit card company the money, even though I believe the arbitration method is a corruption of justice. Still, not once in the class discussion was the arbitration process questioned, even though there was that hint in the case book that this system could be corrupted by money. The class had already thoroughly discussed cases that involve improper service for a court appearance under the rubric "due process of law." In arbitration, due process can be completely avoided, and yet it is still called an innovation of justice.

My Civil Procedure professor kept a tight rein on discussion of arbitration and refused to call on me when I had my hand up. This “semi-Socratic” method is supposed to be for everyone, and please believe me, I’m not the spitting, spouting Socialist that would disrupt a class of budding young American lawyers. This is simply law-school censorship. I did send this professor an important case on the topic: MBNA America Bank, N.A. v. Credit, which relates almost verbatim the same circumstances of my story, with the court ruling against the credit card company.

But that’s not the point. The point is, law schools are supposed to let everyone talk and express their views. At least that’s the way this law school presented its “semi-Socratic” method to us during orientation. Ah yes! Those wonderful warm-feelings we got from the school before our tuition was paid! More on that later. For now, allow me to say that the only method in law school that resembles anything Socratic is that if you let them, they eventually induce you to drink hemlock.