By Victor E. Schwartz, co-chair of Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group, and Christopher E. Appel, Of Counsel in Shook, Hardy & Bacon L.L.P.’s Public Policy Group.

The top priority of the organized plaintiffs’ bar in the 116th Congress is to restrict or eliminate the use of binding pre-dispute arbitration agreements.  Numerous bills have been introduced in Congress that would broadly prohibit the use of these agreements in consumer and employment disputes, as well as narrower proposals that would invalidate these agreements with respect to specific disputes involving students, military service members, or persons alleging sexual misconduct, among others.  The plaintiffs’ bar’s incentive for limiting pre-dispute arbitration agreements is clear:  it would mean more litigation in the courts and more attorneys’ fees.  But, is dismantling the arbitration system in the public’s best interest?

Congress has held hearings examining the merits of pre-dispute arbitration compared to the alternative of civil litigation.  Pre-dispute arbitration is also a subject in which both the public and the judiciary have an interest.  As with many legal subjects, though, facts and myths collide.  The purpose of this paper is to explain the benefits of pre-dispute arbitration and dispel some of the myths that have clouded the public policy debate.