Arbitration and the Individuation Critique

According to many skeptics, arbitration prevents consumer and employee claimants from aggregating their claims, and thus forces these claimants into individualized proceedings where they are unable to counter the advantages presumably enjoyed by more powerful, repeat-player businesses. This Article calls this the “individuation critique.” This Article argues that the individuation critique may overestimate the extent to which arbitration agreements and arbitration procedures currently individuate the disputing process. Moreover, arbitration may have significant potential to facilitate formal and informal aggregation, especially in consumer disputes. The Article concludes by suggesting some reforms of arbitration provider policies that might encourage specialized, repeat-player lawyers to accept, even seek out, arbitration cases and to make meaningful investments in these disputes.