In this article, the authors review recent case law regarding unconscionability related to arbitration provisions involving mass arbitration. They also survey rules and procedures adopted by the American Arbitration Association and JAMS addressing mass arbitration. Based on the current legal landscape, the authors suggest best practices and drafting strategies to avoid a finding of unconscionability in mass arbitration provisions.
Any parent who has taken a young child to a restaurant knows the outing seems like a great idea—right up to the moment one stands at the hostess podium and reaches for the arm of the screaming child now pounding on the lobster tank. At that moment, one flashes back to memories of the last restaurant excursion with the child and remembers saying, never again. Counsel considering eschewing alternative dispute resolution (ADR) altogether in the face of unexpectedly expensive mass arbitration proceedings may come to experience a similar moment of reckoning.
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