Jeffrey P. Gale, P.A. — Arbitration is Un-American

scales-of-justice-300x203The 7th Amendment to the United States Constitution, ratified in 1791, codifies the importance of jury trials in civil cases to the framework in the American Way. Here is the amendment’s simple language:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Jury trials allow everyday citizens, guided by the law and the facts, to pass judgment on civil matters between contesting parties. The concept is that the collective wisdom of juries consisting of our peers, devoid of bias and preference, will render just decisions. The system, which, in my view, is the greatest system devised by any society for handling such matters, has worked remarkably well.

Arbitration is a threat to the civil jury trial system. Wikipedia describes Arbitration as “a form of alternative dispute resolution that resolves disputes outside the judiciary courts. The dispute will be decided by one or more persons, which renders the ‘arbitration award'”. For the most part, arbitrators are lawyers and former judges. In Florida, court-appointed arbitrators must be members of The Florida Bar.

There are two main ways parties end up in arbitration. When it is by court-appointment, the parties must agree to arbitrate. Without this agreement, the case will stay within the judicial court system and proceed to a trial by jury unless the plaintiff, the complaining party, has requested a bench trial. The other way parties end up in arbitration is if the complaining party signed a document at the outset of his or her relationship with the other party consenting to resolve disputes through arbitration. Arbitration clauses are commonly found in consumer contracts and employment contracts. For example, the typical contract for cell phone services between customer and provider, say AT&T, will contain an arbitration provision. We’ve all signed these agreements without reading the fine print.

Some arbitration agreements have profound consequences. In Massage Envy Franchising, LLC v. Jane Doe, 47 Fla. L. Weekly D1151 (Fla. 5th DCA May 27, 2022), a woman filed a multicount complaint against Massage Envy alleging that her massage therapist sexually assaulted her during a massage. She requested a jury trial. Massage Envy responded by filing a pleading seeking to compel arbitration. The trial court denied Massage Envy’s request. Massage Envy appealed the ruling. The 5th District Court of Appeal reversed the lower court, thus forcing the sexual assault claim to be decided by a paid arbitrator rather than a jury of everyday citizens. The arbitration provision in Massage Envy was contained within a sixteen-page Terms of Use Agreement Ms. Doe was handed when she checked in for her massage appointment.

Sadly, while arbitration is generally favored by the courts, Massage Envy, it can and should be challenged. Because arbitration is highly disfavored by plaintiffs, who prefer their day in court, a significant amount of case law has been developed over the years through challenges. This is the subject of another blog.


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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This  information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

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