Jury Trial Waivers: A Better Alternative Than Arbitration?

Employers seeking alternatives to jury trials have traditionally looked to arbitration agreements. In the Third Circuit and New Jersey, as is the case elsewhere, there is a strong presumption in favor of arbitrability, and courts regularly uphold employee arbitration agreements.

However, arbitration is not the panacea once envisioned. Yes, generally, matters proceed to resolution quicker in arbitration than in a jury trial. Yes, arbitration enables employers to avoid unpredictable jury verdicts. And yes, arbitration offers greater privacy than the judicial system. But what about the significant arbitration costs (which largely need to be borne by employers), the difficulty in disposing of cases on summary judgment (if such motions are even permitted), the perception that arbitrators tend to "split the baby," and the lack of a meaningful appeal process?