More than 40 attorneys crowded into a conference room in the Minneapolis City Center last week for what the Minnesota State Bar Association billed as the "Great Arbitration Debate," an hourlong discussion about the merits of arbitration vs. litigation.
Bland, it was not. Anyone who caught just a few minutes of the heated exchange stayed for the whole event.
Squaring off were Marshall Tanick, a former journalist and attorney since 1974, known for his tireless work on behalf of ordinary folks; and Alain Frecon, a Paris-educated business lawyer and longtime arbitrator with the accent and demeanor of someone straight off a French movie set.
Tanick argued that arbitration panels had an institutional bias in favor of large corporations, because corporations represent repeat business. "Institutional bias is the 2,000-pound gorilla," Tanick said. "Few will admit it, but everyone knows it's there."
Frecon shot back with a metaphor. "Litigation is like a four-wheel-drive vehicle that goes off-road," he said. "Arbitration is like a sports car. It isn't meant to go off-road."
When Tanick complained of the limited access to appeals in arbitration, Frecon grew testy.
"Those are the rules of the game," he said. "Once parties agree to arbitrate, it's unconscionable for them to try to appeal."
The debate was timely, in that mandatory arbitration has come under attack recently from consumer groups, and several bills are pending in Congress that would restrict its use and apply more uniform standards.
