Wednesday, August 6, 2014

Arbitration: No Longer A Death Sentence for Consumers

Litigating a case in Court is always the best option, but if you have already signed away your rights to do so in an arbitration clause as part of your purchase of a vehicle, the clause is enforceable, and the courtroom doors are closed, then all hope is NOT lost.  In fact, you may still be able to vindicate your rights in arbitration after all.

Here is a list of the TOP TEN reasons arbitration is no longer a death sentence for many consumers:

1. The arbitration process is often shorter than the court process.

When you file a lawsuit, especially if it is in a large county, the Court’s docket is often so busy that your trial date will be set more than a year into the future.  With arbitration, the scheduling is based upon just three calendars– the arbitrator’s, your attorney’s, and the car dealer’s attorney’s.  And, since depositions are not normally taken by either side in arbitration cases, and discovery is much more limited, the length of time necessary for both sides to get ready for an arbitration is much less than the time necessary if the same case were in Court.  As a result, the arbitration hearing is usually set within months of filing.

2. The cost to arbitrate a case is often less for the consumer than the cost to litigate the case in court.
Depending on the fee agreement that you have with your attorney, and the arbitration agreement that you have with the dealer, in most cases the cost to arbitrate is often less than the cost to litigate the case in court.  There are many reasons for this.  For instance, if your case is arbitrated with the American Arbitration Association (“AAA”), and there is no fee shifting clause in the arbitration agreement, then the Consumer Rules of the AAA limit your out of pocket payment to the AAA to $200.  This is less than it costs to file a lawsuit in Court.  Additionally, since discovery is more limited and depositions are not normally taken, the court reporter and deposition transcript costs are eliminated.  Finally, since witnesses are often permitted to testify by phone, the time and travel costs normally paid to witnesses subpoenaed to testify at trial are eliminated.  Finally, since expert witnesses can sometimes testify by phone and arbitrators will work around their schedules, the ultimate bill from an expert is likely to be much less if he or she is testifying at an arbitration hearing as opposed to testifying in trial, where an expert may sit waiting to testify at trial for hours.  However, arbitration clauses that attempt to shift the expenses to the consumer are becoming more and more popular, so look carefully at your arbitration agreement!  

3. The arbitration costs due from the dealer to the arbitration panel early on often sparks settlement negotiations.
If your case is arbitrated through the AAA, there is a couple thousand dollar arbitration fee due from the car dealer to the AAA early on in the case.  This often sparks settlement talks with the smarter car dealers, and can help to get a case settled early on.  There is no similar process in the Court system to spark settlement talks.

4. Hearsay is often admissible at the arbitration hearing, but would not be admissible in court.
The rules of evidence that keep hearsay from being admissible in Court are not normally applied at an arbitration hearing, or are at least less strictly applied.  The decision is left up to the arbitrator whether or not to follow the rules of evidence.  However, most consider it.  This typically favors the consumer because the consumer is the one that is usually trying to get hearsay evidence in at the arbitration hearing, and not the car dealer.

5. Witnesses are often permitted to testify by telephone.
Witnesses are often permitted to testify by phone.  This is helpful when you have a vehicle that has a title chain that spans all over the United States.  And, with wrecked car cases, this happens all to often.  What this means is witnesses that you normally could not subpoena or afford to pay to testify at trial in Court may be willing to pick up a phone and testify at an arbitration hearing from the convenience of their own home or office in their own state.

6. The process is much less intimidating for the consumer.
Many consumers are intimidated by the thought of walking into a courtroom, being before a judge, and having a jury of their peers sit and listen and decide their case.  An arbitration is much less formal, is typically held at a conference table in a medium sized conference room, and is closed to the public.  This venue is much less intimidating to the typical consumer.

7. There are procedures to remove the arbitrator if you have proof that the arbitrator may be biased.
Proof of bias, or possible bias, can often be hard to come by.  But if you have it, there are procedures with the AAA to remove an arbitrator from your case.  But you need to act quickly, because there are deadlines to do so.

8. All tendered evidence is typically considered by the arbitrator, even if the evidence might not be admissible in Court.
This is often helpful where records custodians would normally be necessary in Court.  Often, the necessity of a records witness is unnecessary because an arbitrator will often be willing to consider evidence without the need to call a records witness.  

9. An arbitration award can be confirmed in Court and is just as enforceable as a judgment.
The Ohio Arbitration Act allows for the confirmation of an arbitration decision in the Common Pleas Court.  Once the arbitration decision is confirmed, it is just as collectible as if it had been a court judgment.  Many states have similar laws, so make sure you know what your state's law is in the event that you win the arbitration, but the car dealer doesn't pay the judgment.

10. Quick access to the arbitrator on important issues.
While motions filed in Court are often pending for months, due to busy Court dockets an arbitrator usually only has one case at a time, so issues are decided quickly and telephone hearings can be set up in just days to resolve issues that require a hearing.

Have a case against a car dealer that needs to be arbitrated in Ohio or Kentucky?  You can call Burdge Law Office on our Toll Free Hotline, 1.888.331.6422, to see if we can help you arbitrate your case.  

Beth Wells
Helping Consumers Get Rid of Lemons, 10 Years Running

No comments:

Post a Comment