Eliminating Unconscionability in Assessing Mandatory Clauses by Deploying the Vantage Point of Public Policy, 24 Alternatives to the High Cost of Litigation 51 (2006)

Abstract: Is it “unconscionable” for someone to agree to mandatory arbitration where the panel of arbitrators is composed of your partners, people who have a vested interest in ruling against you? The answer may be surprising. This paper looks at one such agreement actually used by a major public accounting firm. This agreement has been challenged by partners who were forced into arbitration in courts around the country on 9 separate occasions . The courts approached the issues using two methods for analyzing the fairness of such a provision: unconscionability and public policy. The article compares these approaches with particular emphasis on the impact that subjectivity has on the outcome of a challenge.