Today I successfully objected to an arbitration clause and was still able to get the service. It was for acupuncture. I was filling out all the blah blah forms and then I came across the arbitration agreement. I wasn’t even planning on this, I just saw it and got really uncomfortable.
My eyes skimmed over the words… forgo constitutional rights… American Arbitration Association… binding… I thought about all the other arbitration agreements I had signed: cellphones, rental cars, and credit cards—why was it a problem now? I also thought about how I had written post after post about how arbitration strips consumers of their rights… how arbitrators that rule in favor of corporations get most of the work… how I had urged people to support the Arbitration Fairness Act. I signed everything except the arbitration form and slipped it between the papers and handed it back…
I hoped that maybe it would go unnoticed, but the receptionist looked through all the papers and said, “Oh, we need you to sign this one.” The acupuncturist arrived and got in the conversation, which went something like this:
ME: I’m sorry, it’s nothing against you guys, I have no plans to sue you, I just don’t feel comfortable giving up my constitutional rights.
THEM: Well, it’s just something we have to have you sign for our malpractice insurance.
ME: Are you going to deny me treatment if I don’t sign it?
THEM: We have attorneys come in here all the time and they even say that it wouldn’t hold up in a court of law…
ME: Oh, it’ll hold up, believe me. Are you going to deny me treatment if I don’t sign?
Then they gave in and let me get stabbed with needles without signing an arbitration agreement. I wasn’t trying to be a hardass, I just genuinely felt physically distressed when I saw that word staring back at me. ARBITRATION. Consumer Rosa Parks I’m not, but being able to negotiate the contract process, object to what I felt objectionable, and still get the services rendered, felt good.
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GO BEN! WOOHOO! And honestly, if it were me and they DID deny me service for not signing it, I would have simply stated that I would be taking my business elsewhere.
Since I have started frequenting the Consumerist, anything I sign I quickly scan for an arbitration clause. I don’t much care what the rest of the agreement states, so long as I can sue them for fucking me sans Vaseline.
Way to go, Ben. You didn’t exactly save the world, but it’s a damn good start!
People, it’s so important to at least object. You have to let them know you don’t like being treated like that. There may not be much you can do, but you don’t have to lick their hand and pretend to like it. Say ouch when it hurts, dammit.
Thanks, Ben.
You are a brave soul to “harass” a person who is about to jab 50 needles into you like a human pin cushion.
And “harass” is meant in the lightest, least objectionable way.
You’re very brave for standing up against the binding arbitration agreement for the first time to someone who was about to stab you.
@Sherryness: GMTA
All I can see is this. They go to stick you, there the nurse comes in and startles the sticker and he pokes you in a no no spot so you become paralized.
Them: dont worry its ok
You: the hell it is I can move my arms
Them: we meant its ok for us
You: Why is it ok for you
Them: its not like you can sue us, besides its not my fault the nurse scared me.
You: What do you mean I cant sue you?
Them: well you signed the arbitration agreement.
You: So?
Them: That form you signed means you release your right to file a law suit against us.
You: Oh God I am so screwed
Great job Ben!
Too bad acupuncture’s a bullshit placebo though.
[skepdic.com]
Although you scored big on the whole arbitration thing…you still paid for some bullshit psuedo-treatment. Might as well have purchased kinoki footpads.
You’re my HERO!
@IrisMR: I typed up exactly what you just said, then refreshed the page, and there you are.
But he’s right. Acupuncture is one of those bullshit psuedotreatments that doesn’t even make sense in theory. Might has well have purchased kinoki footpads.
@mgyqmb: It looks like it went through. Looks like I have a bullshit psuedo-refresh feature on my web browser, too.
@mgyqmb: Lol! Looks like you do have a refresh problem.
Well, it’s more like there is very often a couple minutes delay before comments appear here.
My mom was in a car accident recently and has been getting some acupuncture for it. It DOES HELP her pain management. YMMV, but just because you don’t think it works for you doesn’t mean it doesn’t work for everyone. The jury’s still out on the scientific studies.
Arbitration: Actually, I cross that stuff out all the time at the dentist, doctor, etc. I also refuse to fill in some of the too-personal/irrelevant items. No one’s called me on the arbitration thing yet. And if they ask about the info, I ask why they need it, and usually they drop it. I’ve never been denied service because of this yet (crosses fingers).
@elisa: The jury is not out on scientific studies. Every legitimate study has shown acupuncture by a trained acupuncturist is no more effective then a placebo treatment where the needles don’t even break the skin(the studee doesn’t know that of course).
The only studies that show benefits greater than placebo from acupuncture are put out by the Chinese government as propaganda.
Just sign, “Decline” on the signature line. The person processing your paperwork will completely miss it, or they’ll think your name is Decline.
I think the real trick here was in using the phrase “Are you going to deny me treatment if I don’t sign.”
There are virtually zero reasons why someone medically affiliated (an acupuncturist is still somewhat medical) can deny treatment. It’s a difficult process. Even if you say “I can’t pay for this,” it doesn’t matter. When even not being able to pay cannot be used as an excuse to deny treatment, you get the picture.
My guess is, you said “Are you going to deny me treatment…” and he started to get a little nervous, sparking the thought of a future court proceeding.
@Honus: I don’t know about that. Most places will not even make an appointment if you don’t have insurance, and they suffer no consequences for that. Few doctor visits are emergencies. I think those who really believed in the Hippocratic Oath are about all retired and it seems there are few left who will help those who can’t pay or can pay very little. It’s why they all go to emergency rooms.
What I’m curious about is how many physicians would deny you treatment and then try to bill you for refusing to agree to something they sprung on you at the last minute? I suspect that even in those circumstances most would try to bill you and turn you over to a collection agency if you didn’t pay.
Good for you, Ben, but just wait until there’s an audit by their insurance company. I’ll bet your file gets red-flagged and indeed, service will be denied.
Be sure to keep us posted.
Great job, Ben… way to put your money where your … uh… blog is.
I just came in to say the thing about bullshit placebos. Apparently, there are proper studies that show acupuncture may have a better-than-placebo affect for pain management, but only for pain management.
So… unless that’s what you were going in for, how about doing a Consumerist follow-up article explaining to people that they shouldn’t throw their money away on acupuncture, cold laser therapy, homeopathy, etc?
I guess there’s an acupuncture patient born every minute.
@elisa: Placebo helps pain management a lot. ESPECIALLY on pain management, in fact. As far as scientific studies goes, they are all negative.
o/` Tried to make me go to arbitration but I said Noooooo Noooooo NO! o/`
good for you!
i’ve also gotten in the habit of not signing arbitration agreements at doctors offices.
however, last time i went to the doctor, they wanted me to update my paperwork. of course an arbitration agreement was in there. i refused to sign it. they said if i didn’t, the doctor wouldn’t see me. period. it was a simple office visit, so i thought well, i’ll just see him for office visits and that’s it. no surgery or any other treatment.
Where’s the royal we go? *looks around*
…And even “better than placebo” ain’t shabby, considering that the placebo effect has beneficial impact more than 50% of the time.
My placebo effect is scratching the throat of my kitten when it’s sitting on my lap, and murmering to it until it inches forward a bit. Repeat. Repeat… Until it’s cradled under my neck as I read a book, it purring softly.
Well, it cures me of all MY ills, anyway.
I REALLY like the “sign ‘Decline’” strategy, btw. And also think that the magic phrase “Are you denying me treatment?” helps as well.
Good job, Ben!
My friend is a real estate agent and has been sniffing around for business, we had an unrelated conversation about the evils of arbitration and he mentioned that his office has arbitration clauses in all their contracts, and I sadly informed him that I won’t be able to avail myself of his services because of that. The reply “but you signed one for your cellphone” (which I’ve had for 5 years never going over 55.00 a month inc taxes) but there’s no way in hell i’d sign one on a real estate transaction, with all the things that could possibly go wrong. I might have lost a friend, but I’m sure I’m better off in the big picture. Good for you Ben!
@psm321: That’s Meg
(Still love you Meg… mean it!
)
I dont know if its because people tend to sue for any little thing, or if the doctors just dont care what they do now and just want to be covered…
my mom had to sure her dentist for malpractice. This was his second large suit. He charged for work not done, did work that shouldn’t have been done then ended up ruining her teeth and wanting to charge upwards of 100k to fix all the damage he did.
She won, and is getting everything repaired that he screwed up. she hated having to do this but luckily no arbitration clause was signed.
We have attorneys come in here all the time and they even say that it wouldn’t hold up in a court of law
This is where things like this really start to chap my ass.
When I moved into my current apartment, there was a clause in the lease that stated outright that the tenant (me) would be responsible for the maintenance of the sump pump in the basement. When I balked at this, the girl said “Oh, don;t worry – that doesn’t apply to you.”
I asked if the building had a basement.
“Yes”
I asked if the basement had a sump pump.
“Yes”
I then pointed out to her that if the sump pump failed and the building was damaged, I would be legally responsible for all the damages.
“Oh no – that doesn’t apply to you.”
I told her that if it didn’t apply to me, then we should cross it out in the lease
“I can’t do that. Besides, what are you worried about? I told you it doesn’t apply to you.”
Sigh.
to stay on topic, though – Good jorb Ben! Frankly, I think MBA should be illegal in ALL cases.
While I’m all for your “kitten therapy,” placebo effect does not work more than 50% of the time.
A lot of people misunderstand “placebo effect.”
From the Science-Based Medicine blog:
[www.sciencebasedmedicine.org]
Placebo effect doesn’t change the objective measures of physiological outcome, it changes your attitude and belief. For instance, some men given a placebo for enlarged prostate said they “felt” better but objective measures of their prostate size showed no change in the actual disease. Thus, non-efficacious treatments like placebo effect and acupuncture can provide relief from mild pain for some people, but only to the extent that the pain is a perceptual issue.
Thank God there’s a skeptic in the room!
Get it? See what I did there?
Really, I’m right with you Skeptic.
I regularly cross out an arbitration agreement when I see one or simply state that I decline to sign it.
@Skeptic: What the man said! Couldn’t have put it better myself. That’s all there is to acupuncture, folks! Quite frankly, even if it was working (which we showed is NOT), the idea of relieving pain with being stabbed by needles sounds like a bad idea to me… I’d most likely end up stabbing the poker myself.
…Oh yea, arbitration is bad! I don’t think I ever had to sign one myself. Usually dentists make you sign one before removing your wisdom teeth, and I didn’t even have to do that!
Wow, imagine trying to debate Ben Popken of all people when attempting to get someone to agree to anything by signing a legal document. Makes my brain hurt just thinking about it. I mean, the main man of the consumerist is going to win any argument you try to engage him in and catch any legal bullshit you attempt to sneak by. Glad to see he got what he went there for. Hope you’re feeling better Ben.
It doesn’t matter if you sign it or not. If there is an established policy of using arbitration clauses within the environment, and you are aware of this and continue treatment, if you were to sue and they demanded arbitration, they can show that you agreed to the arbitration clause by continuing with the treatment.
People, it doesn’t matter if you cross these arbitration phrases or write ‘decline’ or not — the arbitration can be established as part of the policy of the business (or employer), in which can you’re explicit concurrence is not necessary. The courts would say that you had a choice not to be treated.
Example.
The only defense against binding Mandatory Arbitration agreements is the Fair Arbitration Agreement act of 2007. Have you contacted your congressional representatives on this? It’s a better use of your time then fruitlessly arguing with your doctors.
@Skeptic: Really? Nice distinction there – very educational. Thanks!
(still recommend purring kittens as therapy, though
)
@shelleyp: Whoa. This doesn’t sound kosher.
I waive my rights to a trial by jury (a tradition harking back to the Middle Ages) because of a wink and a nod by a sales rep or receptionist?
I call bull: they don’t have your signature waiving a right, you retain that right.
They’d try to con you that you should nod, whimper and obey, of course.
Accupuncture? Calling Apple Support? Going to the movies? Being on TV? …WHO THE HELL IS THIS BEN POPKEN?!?
@LAGirl: so you said no, they said yes, then you said “ok”. what is the point of arguing if you are just going to fold?
@xtc46: It’s better than not objecting at all.
bravo Ben!
What’s up with all the “BS psuedotreatment” comments? Its not like the drugs we all take don’t have side effects. When we have drugs that specifically target an illness without side affects, then we can talk about pseudo-treatments.
Congrats on beating the arbitration bug. But all said and done, you still ended up paying for acupuncture, so, yeah, I think the joke is actually still on you.
Did the guy have the box of regular needles and poison tipped needles right next to each other?
Hai gaiz,
I’m new to this whole “consumerist” dealie, but I never quite understood the precedent on this issue. You guys all treat MBA clauses as enforceable, but case law as I understand it says that such contracts and unconscionable and thus unenforceable. Burch v. Dist. Ct. (2002) seems to be the latest word, coming from the Nevada Supreme Court, and it states (HBW is the contract in question, a Home Buyers Warranty):
—–
Because an order compelling arbitration is not directly appealable, the Burches appropriately seek writ relief from this court. When there is no plain, speedy, and adequate remedy at law, a writ of mandamus is available to compel the district court to perform a required act, or to control an arbitrary or capricious abuse of discretion. Under the circumstances of this case, the HBW is an unconscionable adhesion contract and, therefore, unenforceable. The district court should not have compelled arbitration under the unenforceable clause. Accordingly, we grant the petition for a writ of mandamus.
—–
Seems like an MBA isn’t that binding at all. What’s the dealio?
Sorry, TAKA2K7, but all treatments powerful enough to have a physiological effect are powerful enough to have side effects. If there are no possible side effects then you know the treatment isn’t real. Claims of “No Side Effects!” are one of the sure signs of quack medicine. Low side effects? Sure. No possible side effects? Nope. Even water can have side effects and can kill you under the “right” circumstances.
The idea of side-effect free treatments is a nice fantasy, though.
To confuse matters more, accupunture may have a an effect on pain, however this effect is not related to the ancient chi “meridians.” In a recent study, needles were put in “real” chi points and in random points. The results were about the same, with the slight nod going to the “real” chi points. Accupunture fans will want to say, “No, that’s proof the Chi points work!” But in reality, not so much. The testers put the Chi point needles in deeper, so it is more likely that the effects, if any, are related to how far the needles are inserted rather than where. And this could still be placebo effect, too, because the testers knew whether they were inserting the pins on the “Chi” points or not, so the test was only single blind at best.
In any case, accupunture has never been shown in a double blind study to do anything but mild pain management, and even then always at about the same rate as placebo. There is no evidence that accupunture helps smoking cessation or any of the other numerous diseases it is used to treat.
No, Mandatory Binding Arbitration is generally still fully enforceable. Those decisions on the unconscionably of the MBA has generally hinged on a confluence of state specific law and clauses in the MBA agreements prohibiting class actions. Any MBA without such a prohibition and/or not in a state with case law finding such clauses to be unconscionable will still likely stand.
Even without class action prohibitions, non-negotiated MBA’s are still morally unconscionable–especially since “impartial” arbitrators are under financial pressure to please their repeat customers and because arbitrators do not have to base their unappeasable, binding decisions on law. Unfortunately, Federal law gives states very little leeway to find them to be such.
In most states, if a representative of the entity you are dealing with initials the rider (crossing out a given clause), then that clause is removed from the contract. Better to write in plain english at the end of the agreement/contract that clause “x” is null and void and have it initialed by yourself and the company rep.
I am not a lawyer. YMMV.
@shelleyp: Citation?
I didn’t bring it up in the post because it’s not the point of the article but I would like to say that I did the acupuncture because my girlfriend swears by it and we thought it would be fun to go in together and I figure hey, I’ll try anything once, maybe it will help with stress and energy levels. It might have just been placebo effect but I did feel better afterwards. Will I return? We’ll see.
@Ben Popken: Of course you felt better afterwards, you’re under a placebo effect. It doesn’t mean that you didn’t pay for a woo-woo scam of new age that has been constantly proven useless to the real problem. It’s all psychological.
I suggest you go to a doctor and that said doctor slips you sugar pills without you noticing. You should get the same effect, but with SUGAR instead! Sugar’s better than being stung like a porcupine.
@IrisMR: LOL, all my problems are psychological. Anyway, I could be wrong but I’m pretty sure placebos effect doesn’t take effect if you know you’re getting sugar pills.