Joining the ranks of Halliburton and Hooters, the law firm Kirkland & Ellis will force its associates to sign mandatory binding arbitration agreements as a condition of continued employment. Mandatory binding arbitration is an extrajudicial perversion of justice that substitutes open court with private tribunals that shield proceedings from scrutiny or appeal. Arbitration has spread like a festering cancer, latching onto employment agreements, cellphone contracts, and even medical waivers. Let's look at Kirkland & Ellis' proposal, starting with their absurdly hypocritical critique of litigation.
The answer to this depressing deluge of wasteful litigation is to deprive associates of the same access to justice sold to clients for barrels of lucre. When Kirkland & Ellis fails to resolve a dispute internally, associates will now be forced to take their complaint before an arbitrator from the American Arbitration Association. That alone doesn't sound too bad, until you you realize that arbiters are far from impartial.
1. The process is adversarial 2. It is costly 3. It is time-consuming
Consider arbitration's cost:
"An employee who initiates arbitration will pay the first twenty-five dollars ($25) of the required AAA administrative fee, and Kirkland & Ellis will pay the remaining portion of the fee and all fees and costs of the arbitrator. If arbitration is initiated by Kirkland & Ellis, then Kirkland & Ellis will pay 100% of the required AAA administrative fee and all fees and costs of the arbitrator."It may seem equitable, but by paying arbiters, Kirkland & Ellis creates an intractable conflict of interest that immediately biases supposedly-impartial arbiters in favor of the firm.
Consider arbitration's outcomes. Arbiters rule in favor of companies over 94% of the time. In employment-related disputes, Halliburton wins 82% of the time. Pfizer's win rate is an unbelievable 97%. Regular employees do not prevail in arbitration.
Even worse, because arbitration is private and results in no written opinion, decisions made by arbiters contribute nothing to public case law. Arbitration victories set no precedent and present limited opportunity for appeal. Surely law firms can do better. Of course, Kirkland & Ellis associates know exactly how arbitration is a damaging alternative that deprives them of rights. We eagerly await their reaction.