Mark A. de Bernardo, a senior Partner at Jackson Lewis, testified December 12, 2007, on behalf of the Council for Employment Law Equity ("CELE") against S.1782, the "Arbitration Fairness Act of 2007," calling it "a mandatory litigation bill" that "would impose a death penalty on Alternative Dispute Resolution as an employment practice."
"If S.1782 is enacted," de Bernardo testified to the Senate Judiciary Committee's Subcommittee on the Constitution, "our civil justice system will be catapulted into chaos. Hundreds of thousands of arbitrations a year will be replaced by tens of thousands of new court cases, and any redress by the vast majority of individuals currently using the arbitration process will be rendered impossible as their claims will be abandoned and left homeless in the new judicial order."
The hearing focused on S.1782, a bill which would make all "predispute arbitration agreements" in the employment, credit, financial, and securities areas "void and unenforceable," retroactively cancelling millions of such agreements.
"It is hard to imagine a more sweeping - and devastating - blow to mandatory binding arbitration than S.1782's language," testified de Bernardo. "S.1782 would effectively end arbitration in America."
de Bernardo called ADR "both pro-employer and pro-employee" and "a common, useful, positive, pro-active, timely, effective and cost-effective tool for making employers better employers and giving employees favorable resolution of their workplace problems," and added that, "ADR would essentially be eliminated from the American employment landscape after more than 80 years of sustained growth and success."
de Bernardo pointed out that many more individuals have access to our judicial system through arbitration than do through litigation, that individuals are more likely to prevail in employment arbitration (63 percent) than employment litigation (43 percent), and that median awards to employees are actually higher in arbitration than in litigation. He also cited survey results that 86.2 percent of lawyers and 83 percent of employees favor arbitration, and that more than 70 percent of the individuals who had participated in binding arbitration were satisfied with the fairness of the process and the outcome.
The Council for Employment Law Equity is a non-profit coalition of major employers that advocates responsible employment practices and attempts to influence the consideration of national policy issues of importance in legal, legislative, and regulatory forums at the federal and state level. Mr. de Bernardo serves as Executive Director and President of the CELE.
He also is a senior Partner in the Washington Region office of Jackson Lewis, a national law firm of 435 lawyers in 32 offices, all of whom are dedicated exclusively to the representation of management on labor and employment issues. Jackson Lewis is a long-time advocate, to and on behalf of its clients, of mediation and arbitration as alternatives to litigation.
In his testimony, de Bernardo criticized the plaintiffs' bar and its "multi-million dollar verdicts for hot-coffee cases." He continued, "the trial lawyers would win if S. 1782 became law - a bigger pool of potential plaintiffs, less harmony in the workplace, more former employees (rather than current employees) with issues, more opportunities for one-third-plus-expenses of the verdict or settlement."
"The rest of us? We would lose. S.1782 - and the betrayal and abandonment of ADR it represents - would be bad public policy and harmful to American justice and American society," he testified.
"If you want justice in America today, go to arbitration. Arbitrators are more predictably balanced, unbiased, fair, and neutral than are the politically appointed judges and randomly selected juries of our litigation system," de Bernardo concluded. "ADR in employment programs are flourishing, and when implemented appropriately, are decisively in employees' best interests. Arbitration works? and works well."