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chudy due process - Robert Reed Chudy Managing and...

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Robert Reed Chudy Managing and Resolving Conflict Professor Colvin Arbitration and due process paper Due Process Protection Concerns of Mandatory Arbitration Mandatory arbitration (also known as mandatory binding arbitration) is a system used in some states that requires disputes to be settled with Alternative Dispute Resolution practices instead of litigation. This practice is used in the workplace in both blue collar and white collar jobs. In mandatory arbitration, a company requires a consumer to agree to submit any dispute that may arise to binding arbitration prior to completing a transaction with the company. The consumer is required to waive their right to sue, to participate in a class action lawsuit, or to appeal. This differs from voluntary arbitration where the complaining party has the option to either go to arbitration or file a law suit. Many are in favor of mandatory arbitration for the positives associated with by passing litigation; however others raise concern over some of the rights lost under this system. One such concern is the loss of the right to due process. Arbitration in the United States has been on the steadily on the rise for many years. (Feingold, 2002:283)One reason that arbitration is preferred to litigation is
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cost. Hiring lawyers for a court case can make a big dent in one’s pocket, especially if the proceedings take longer than expected. Arbitration is also thought to be more flexible than going to court, especially for the businesses. Both parties have a say in the neutral that is picked, which can alleviate some bias that might have been present in the court. Depending on the case, an arbitrator with a higher expertise of the situation can be picked. In court, the judge and jury are not usually experts on the issue that is presented in front of them. Lastly, and one of the most important reasons from the company side is that arbitration can be kept confidential and out of the public eye. If a company went to arbitration over something like sexual harassment, for example, they would not want media attention that could make consumers associate their name with an unlawful act. Many experts agree that arbitration as a whole is a good alternative to litigation. However, mandatory binding arbitration raises concern over protected rights. Non-binding arbitration is less of a concern because the parties involved have the opportunity to reject the neutral’s decision after it is presented. Mandatory binding arbitration is raises the most concern of any type of alternative dispute resolution process. It has the largest potential for abuse since the arbitrator’s decision is final and the parties have no other options to solve the dispute. (Feingold, 2002:283) The Constitution of the United States of America guarantees citizens the right to due process. While the finer details of due process (since it is mentioned twice in the American Constitution and 5 times in the Amendments) have been subject to
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debate the main theme remains unchallenged. At its core, the right to due process of
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