Re: Binding arb clause in new contract--unfair?!

Subject: Re: Binding arb clause in new contract--unfair?!
From: Michael Fraase <mfraase -at- FARCES -dot- COM>
Date: Wed, 25 Mar 1998 10:57:54 -0500

Keith Arnett <keith_arnett -at- RESTON -dot- OMD -dot- STERLING -dot- COM> wrote:

>Randy <ghost -at- NETAXIS -dot- COM> at INTERNET wrote:
>> B) My real objection is that the new contract has what I consider to be
>> an extremely severe binding arb clause; it asks me to waive *all*
>> rights to go to *any* court, whether state or federal, for *any*
>> reasons, including violations of any local, state, or federal laws. The
>> mediator would be J.A.M.S./Enddispute of New York, NY.
> I'm no lawyer, but I don't believe that it is possible (or legal) for
> you to totally waive your constitutional rights via a business
> contract. If you consult a lawyer of your own, I think you will find
> that this clause would be non-binding.

In Minnesota and North Carolina (I've no idea about New York but I'd be
surprised if it were different) my experience is that a binding
arbitration clause is very binding indeed. Even for things not
specifically addressed in the underlying contract--things like copyright
infringment, fraud, and violations of the Electronic Communications
Privacy Act (ECPA) to name only three.

Run, don't walk, away from any binding arbitration clause. Arbitration is
intended to be a way to quickly, equitably, and inexpensively resolve
disputes. In my experience it's anything but. Talk to an attorney about
things like rules of evidence, rules of discovery, and things like
subpoenas. (Here's a hint: for the most part they don't exist and can't
be enforced.)

My experience with regard to this issue is in traditional trade
publishing, not work-for-hire or employee situations.

Michael Fraase, proprietor
mfraase -at- farces -dot- com

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