The Consumer Financial Protection Bureau now is seeking public input about mandatory arbitration clauses in the contracts of financial products and services. More important, the board has the power to limit or even eliminate the clauses if they hurt consumers.
Of course, not every company inserts arbitration clauses in contracts, but it's nearly impossible for consumers to avoid them altogether.
"You would have to live in a cave somewhere," says Amalia Kessler, a professor of law and legal history at Stanford University. "You can opt out of society. That's how you can opt out of these things."
By accepting arbitration, you agree to let an outside party — generally chosen by the company — settle any dispute. This raises concerns that arbitrators may be biased in favor of the company that's awarding them the business.
The arbitrator's decision usually is final and confidential, which makes it hard to know if the process favors one side. Among the few states to do so, Maryland last year started to require certain groups performing binding consumer arbitrations to make the outcomes public.
Meanwhile, some arbitration clauses — with the blessing of the U.S. Supreme Court — go so far as to prohibit you from joining a class action with similarly aggrieved customers.
So, if a company overcharges thousands of its customers by $10, they can't band together to sue. A single person cheated out of a sawbuck isn't likely to bother to arbitrate to get the money back. As a result, the business has little incentive to change its ways.
That's why it's so important to consumers that the Consumer Financial Protection Bureau look into this.
The Wall Street Reform Act two years ago created the CFPB and required the new agency to report to Congress on arbitration agreements in financial products. At the same time, the law banned the arbitration clauses from residential mortgages.
The CFPB will be collecting public comment through June 23. Its review likely will cover credit cards, payday loans, auto loans, checking accounts and other bank services. And whatever action it ultimately takes will affect millions of consumers.
Some lawyers, though, say arbitration can be faster and less expensive for consumers than going to court.
"It can be more efficient," says Kristen Blankley, an assistant professor at the University of Nebraska College of Law.
Arbitrations generally last six months to a year, much less time than a case in backlogged courts, Blankley says.
In the past decade, more companies have started paying most of the arbitration tab and have moved hearings to locations that are convenient for customers, she says.
And though most results are confidential, this can work in the consumer's favor, Blankley adds. For instance, you might not want your neighbors to know you defaulted on a credit card bill, she says.
Douglas Worrall, a retired Baltimore lawyer and arbitrator, says fairness issues can arise in court cases. Juries and judges can be biased, he says. And in many class action lawsuits, the plaintiffs recover little money while the lawyers "get millions," he says.
But consumer advocates say arbitration is tilted in favor of businesses.