07 January 2008

The Trouble With Consumer Arbitration

"[B]usinesses win 97% of the cases against consumers that go to arbitration."

From here.

Of course, this has to be balanced against the consumer success level in the state courts. In Colorado, county courts are the main forum where consumer cases are brought against debtors. About 118,000 money claim cases are brought in that court each year (apart from the small claims cases that consumers themselves tend to bring), making up 64% of the county court civil docket (most of the rest involves evictions, restraining orders and name changes). These cases are overwhelmingly brought en masse, by collection agency attorneys or consumer collection specialist attorneys. The civil cases produce 1,260 civil trials a year (all but 16 of which are non-jury trials). Presumably, businesses also win a significant percentage of cases that actually go to trial, many of which involve pro se consumer defendants against represented business or landlord plaintiffs with a great deal of trial experience.

If a pre-trial settlement (there is essentially no motion practice or discovery in county court and cases typically go to trial less than four months from the filing of an answer) or default judgments (which probably make up a majority of cases) counts as a creditor win, then considerably more than 99% of money claim cases are business wins.

Since the 97% figure is only for arbitrations commenced against consumers (excluding most of the kinds of cases brought in small claims court), this suggests that consumers may actually do considerably better in arbitration than in court. This could reflect the notion that arbitration is more likely to address the merits than the court process, in which many cases produce default judgments despite a meritorious defense.

But there are about 6,734 small claims trials each year in Colorado, out of 12,880 cases a year (a 50% trial rate) usually involving pro se parties on both sides. Consumers tend to fare better in this venue. Many of these are brought by consumers (or by very small businesses against consumers), and these tend to balance out the poor success rate of consumers in county court collection cases.


Anonymous said...
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Andrew Oh-Willeke said...

More analysis along the same lines is found at Overlawyered.