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What could make Jordan Fogal, a 61-year-old ultra-conservative Republican grandmother from Texas, refuse to vote for a single Republican in the last election? Two innocent sounding words: mandatory arbitration.
In 2002, Jordan was a happily married senior citizen living in a brand new house and making plans for retirement. She believed in "the system," she believed in the law, and she believed in America. Jordan had the American dream, and then she lost it. Or, more accurately, she signed it away.
When the Fogals reviewed the contract to purchase a new home, they saw a mandatory arbitration clause. The clause said that, if they had any dispute with the builder, they would be required to submit to binding arbitration -- where disputes are decided by an arbitrator -- and could not take them to court. But since they had a warranty on the house, homeowners' insurance, positive results from a complete inspection, and had dealt with a reputable licensed realtor, they weren't worried. In any case, arbitration sounded like a civilized way to handle conflict. Who needs the courts?
The truth is, however, that although arbitration sounded reasonable and pleasant, it can be anything but. Arbitrators are not required to adhere to the law in making their decisions. In fact, not only can arbitrators make rulings that a public court would find poorly reasoned, or even silly, they do not have to provide reasons for their decisions. To make matters worse, their decisions can almost never be overturned by a court. Yet, the worst part about mandatory arbitration is that the arbitrators have a vested interest in siding with the businesses that make their services, and thus their arbitration fees, mandatory.
They learned all of this soon enough. The day they moved in, the Fogals' dining room ceiling caved in from leaks in the plumbing. Soon after, windows leaked, floors buckled, walls protruded, mold grew, and a foul odor filled the house. The Fogals wound up paying $9,537 to participate in an arbitration of their claim, not including their lawyers' fees (supporters of arbitration claim you don't need one, but the builder they were trying to hold accountable seemed to think he needed his). Without this clause, they would have just paid a filing fee of at most $350 and taken their case to court.
The Fogals lost their home because they could not afford to pay for alternative housing, moving expenses, lawyers' fees, arbitration fees, and their mortgage at the same time and because they were also not willing to try and dump the house on another family. Sure that government would intervene to protect her, Jordan went to every representative in her state to notify them of the injustice she and her husband had endured. All of the Republicans ignored her. Indeed, support for mandatory arbitration agreements, tort "reform," and other means of keeping Americans out of the courts have been a Republican staple for years.
Finally, two Democratic state representatives wrote letters on her behalf, but even they told her that there was little they could do because of an old federal law favoring arbitration agreements passed when they were primarily only made between corporations. But at least they tried.
Right now you may be thinking, "that is a sad story, but it could never happen to me because I would never sign a mandatory arbitration agreement." Unfortunately, if you have a new home, new car, car lease, credit card, bank account, cell phone, storage room, utilities, or an exterminator chances are you already have.
Do not just take my word for it, look at your contract.
And when you call your company to complain, and they respond that arbitration is cheaper and faster than a normal trial and for your own good, ask them, "then why is it mandatory?"
See more stories tagged with: privatized justice, gop, texas
Cyrus Dugger, who co-authored this op-ed with Mrs. Fogal, is the Senior Fellow in Civil Justice with the Drum Major Institute for Public Policy. He blogs at TortDeform.org.
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