In business and employment disputes, it is commonly accepted that arbitration provisions are preferred by employers. There are numerous reasons for this, with the primary one being that juries may be unsympathetic to employers. For this reason alone, many attorneys representing employees seek to avoid arbitration and to develop strategic approaches remain in court with claims to be tried to a jury. However, that strategic approach is not always optimal. A “one size fits all” approach does a disservice to clients, who are capable of contributing to important strategic decisions such as whether their cases should be tried or arbitrated. Over the course of the last several years, my clients have become increasingly more aware and concerned about the public nature of court proceedings. The “Google Machine” will now likely yield details about lawsuits filed by or against individuals. Prospective employers, business partners, nosy neighbors, family and friends now have easy to access to online docket reports and filings. Of course, court filings have always been public. But now, they are so readily accessible, that the public can access them without leaving their home or spending any money. By contrast, arbitrations are truly private. There is no public docketing system and no right of the public to review case filings. Litigants can have their cases decided with little risk of the result becoming public fodder for prospective future employers or business colleagues, nosy neighbors, etc. Many of my clients (particularly Millennials and later) heavily weigh the value of their online presences and are pleased to learn that an arbitration provision in a business or employment agreement will enable to them to pursue claims privately.
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