There are many “big lies” out there with new ones sprouting every day. We try to get to as many as we can, but we’ll never live long enough just to cover all of the ones already spreading. Especially with the help they get on the Internet. “It must be true, I read it on the Interweb!” Yeah right.
There is one “really” big lie that the two of us keep talking and writing about, in our lecture presentations and in our book. Most people hear us, understand we what say, but it appears that very few creatives really understand the serious implications of the word “arbitration” until they are forced to engage in it. It‘s usually presented with a sales pitch like, “This will save you big lawyer fees” or “It’s cheaper than going to Court” or “You won’t need a lawyer” or “Its our policy”.
Arbitration means you are giving up your Constitutional rights under federal and state laws to a trial by a court and/or jury. See our previous articles on this topic entitled: ARBITRATION? You Want Arbitration? You can’t handle arbitration! and Arbitration – Part 2.
Imagine if the concept were pitched to a creative by an agency or client as, “Listen in order to do this job you have to give up your constitutional right to trial”. Although accurate, such a pitch would not be especially enticing. In the EU, unlike the US, arbitration at the creator/client level is very much frowned upon. In some quarters the imposition of the arbitration process to determine disputes is considered a violation of human rights.
Why bring this all up again? Glad you asked. The New York Times has a terrific 3- part article and a video regarding the pitfalls and abuse associated with binding arbitration. They have actual cases showing the issues and pitfalls of arbitration. The link for part 1 is here , part 2 here and if you’re still up for it, part 3 here. We feel this is a must read for creative people. The Times’ articles point out what we have been saying for decades. Signing an arbitration clause basically takes away some of your constitutional rights.
As said in the Times quote of the day: “This amounts to the whole-scale privatization of the justice system. Americans are actively being deprived of their rights.” Myriam Gilles, a law professor at the Benjamin N. Cardozo School of Law, on businesses bypassing the legal system with arbitration.
While you can’t avoid these clauses in some dealings like getting a credit card, you do have options when dealing individually with clients with regard to terms of purchase orders, creative services and other commercial dealings with your client. We highly recommend simply crossing out (and initialing) arbitration clauses in almost every case or whenever possible. Jack, in his experience, has had very few comments or problems doing that on purchase orders. Especially when the client send paperwork after the fact. Jack loves that because he has all the leverage at that point. Your mileage of course may vary, but we strongly feel this is an issue you should be fully aware of and understand.
To get a good idea of how the imposition of an arbitration clause may affect an independent contractor’s livelihood check out the current reportage regarding the legal war between Uber and its drivers. Search/ Google “Uber” and “arbitration clauses” or read this link or this link. Then read one or more the numerous articles on the subject from multiple sources on the on-going battle and what is at stake.
It’s a lot of links and a lot of reading, but as the saying goes, being forewarned is being forearmed.
There are some advantages to arbitration in some very limited situations. In fairness we will address that very small list in an upcoming piece.