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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ben, you are da shiz-nit!
Well played, sir.
P.S. Regarding the whole placebo effect, my whole thought regarding this is “If it works, it works.”
On one hand, they have been shown to have little to no effect over a large sample of the population. So, I rarely, if ever, recommend placebo-type treatments to people who come in asking about a specific problem because the odds are that it will do nothing and they will waste their money.
But it has been shown time and time again that on a case-by-case basis, there is a lot of potential for beneficial effects. That is to say, if you pick one person out of 100, you may see a noticeable effect, as opposed to averaging the result of all 100 of those people.
So, if someone comes in and tells me how a placebo-type treatment is working, then by all means, I encourage them to continue it. Ultimately, the end goal is treating the problem by whatever means possible, even if it may not be the most “scientific” means out there.
@shelleyp:
That is misleading as well as broad – You are arguing that an contract was formed by actions rather than words AND that the businesses interpretation of that contract is the valid one.
You miss a few things, first, the actions may be equally interpreted either way, second the lack of signing of a binding agreement for the giving up of rights has force. Moreover, you seem to forget that the terms of the contract are interpreted against the party that makes those terms and in this case, the busienss not the consumer makes those terms.
Note IL law – Apparently the legislature felt that patients at healthcare facilities need protection if asked to sign agreements to arbitrate any claims. The Health Care Arbitration Act, 710 ILCS 15/1, et seq., requires a healthcare provider wanting an arbitration provision to give the agreement to the patient or a member of the patient’s family and reaffirm it in the discharge planning process. If it is not, it is void. 710 ILCS 15/8(e).
@Skeptic: @Skeptic:
Actually -
An arbitration clause is enforceable in both state and federal courts, even though there may be state statutory provisions seeking to inhibit or eliminate the right to arbitration. These state statutes are generally struck down as being violative of the supremacy clause of Article VI of the United States Constitution, which holds that the laws of Congress are superior to the enactments of the individual states. Southland Corp. v. Keating, 465 U.S. 1, 79 L.Ed.2d 1, 104 S.Ct. 852 (1984). Thus, the Federal Arbitration Act (FAA), 9 U.S.C. §1, et seq., provides for the enforcement of arbitration contracts, the stay of litigation to enforce binding arbitration contracts, and other forms of relief. 9 U.S.C. §§3, 4. See Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L.Ed.2d 902, 116 S.Ct. 1652 (1996).
Most securities brokers, some employers, and a number of consumer product and service companies require disputes to be handled through arbitration, rather than through the courts. These clauses are usually enforced, and the governing agreements or operating rules prohibit the disputes being brought as class action arbitrations. The enforceability of these provisions has been hotly contested. See, e.g., Champ v. Siegel Trading Co., 132 F.R.D. 51 (N.D.Ill. 1990); Keating v. Superior Court of Alameda County, 31 Cal.3d 584, 645 P.2d 1192, 1214 – 1218, 183 Cal.Rptr. 360 (1982), rev’d in part on other grounds sub nom. Southland Corp. v. Keating, 104 S.Ct. 852 (1984); Harris v. Shearson Hayden Stone, Inc., 82 A.D.2d 87, 441 N.Y.S.2d 70 (1981). However, the limitations on their enforcement (Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 131 L.Ed.2d 76, 115 S.Ct. 1212 (1995)) or the unfairness of their terms (cf. Green Tree Financial Corp. – Alabama v. Randolph, 531 U.S. 79, 148 L.Ed.2d 373, 121 S.Ct. 513 (2000)) may provide bases for class claims.
When addressed under Illinois state law, in the Illinois courts, a mandatory arbitration provision is treated as a contract law issue, whose validity is a court determination, and may be voided by a finding that the provision is either procedurally or substantively unconscionable.
The Seventh Amendment to the Constitution guarantees a right to jury trial for all claims for money damages in excess of $20. Therefore, absent an agreement, no court can order a party to binding arbitration.
(from various sources)
@shelleyp: Sure you arn’t a publicist of Senator Jeff Jacobs – not sure about the FAIR ARBITRATION ACT OF 2007 [sessions.senate.gov] seems like fluff though I will read more.
IF ARBITRATION WAS A GOOD DEAL FOR ALL THEN YOU WOULD SEE MORE ARBITRATION AGREEMENTS AFTER A DISPUTE (LEGAL BTW) RATHER THAN IN THE CONTRACT BEFORE A DISPUTE.
Ben, what part of the linked example that I included didn’t you understand?
Curiousity: do you even know what the Act is? You call it fluff, and then you quote about how if arbitration was a good thing, you’d see more agreements after a dispute than before. Don’t you realize that the whole focus of the Act is to eliminate pre-dispute binding mandatory arbitration agreements? Such as the one discussed in this post?
As for my statement being broad, no more so than people believing if they decline to sign such an agreement, cross it out, or write ‘decline’ next to it, that they aren’t covered by the arbitration agreement. It may very well not be enough, depending on state law and depending on circumstances. In other words, you can’t depend on this action being enough to protect your rights to a trial rather than arbitration.
A couple of problems with that. One is the definition of “works.” Placebo effect makes you think something has worked when, in fact, it has had no physiological effect. So it doesn’t really work.
Second, how much should a woo-woo quack be able to charge people for fooling them in to thinking they have received efficacious treatment when they have not? I’d say that one should not be able to charge for dispensing ignorant bliss.
I think that might be poor phrasing on your part. Nobody is seeking to eliminate the “right” to arbitration. What people are seeking to eliminate is coercive non-negotiated agreements by parties with superior position that force consumers into biased and expensive Mandatory Binding Arbitration, arbitration which does not have to follow the law and is generally unappealable–a private “legal” system bought and paid for by the corporations.
I think your later post is correct, though, if MBA is so great then more parties would mutually volunteer for it when a dispute arises. As it stands, MBA allows companies to unilaterally exempt themselves from the law–a ridiculous perversion of the intent of the Federal Arbitration Act. The real, but difficult, solution is to change the law at a Federal level.
PS I also wanted to add that it can’t hurt to cross these arbitration agreements out, and may protect your rights. As such, if the organization will still accept the contract with the agreement crossed out or declined, more power to you. Here’s an example where this action worked.
But I think it’s important that people understand such an act does not guarantee to protect your rights.
There was one case where a person sued a car dealer, and the company moved to compel arbitration. They did not have evidence of a signed mandatory arbitration agreement, because they said they had lost the contract. Instead, the company brought in a employee as witness who swore that all contracts included a mandatory arbitration agreement. The court then ruled the car buyer was covered by that agreement, whether the customer believed they signed such an agreement or not. No, I don’t have a link on this one. Sorry.
That really would be best. However, many contracts have a “non-severability” clause that prohibits deletions to the contract. Be sure to cross that one out, too
In any case, I think you can unilaterally cross out whatever you like and the parts you crossed out can’t be enforced on you. However, if the opposing party doesn’t also agree to the changes in writing on the contract (their initials by the deletions or such) the whole contract may be considered void, which may not be a big issue as long as getting out of the whole contract is an acceptable solution in a dispute.
–Not legal advice. IANAL. (Couldn’t we get a better acronym for that than “I Anal?”
Um …. acupuncturists are NOT doctors.
Skeptic: “Not legal advice. IANAL.”
You don’t need to say anything if you’re giving an opinion rather that presenting yourself as a lawyer specifically giving advice.
Assume all parties are not lawyers unless they identify themselves as ones. And even then, take advice with caution because most lawyers are not up on arbitration law. But then, most lawyers won’t give advice out in forums.
@shelleyp:
Thanks, I usually point out IANAL not so much as a legal disclaimer but as a practical advice disclaimer so that people will know not to assign too much value to my opinion. Even lawyers often can’t agree on what will or won’t work because in many cases it comes down to a decision by a judge or series of judges influenced, in part, by how much justice you can afford (usually in terms of billable lawyer hours.)
@Skeptic: I saw a veterinary study for acupuncture where their results suggested it was the connective tissue that was the crucial thing to target with the needles. But the data was only suggestive and preliminary, not conclusive.
Apparently animals are fairly good test subjects for acupuncture because they don’t equate “someone coming at me with a needle” with “pain relief” so there’s no placebo effect.
(The downside being, of course, that with animals you have to judge pain based on visible symptoms, such as favoring a particular limb.)
One of the hallmarks of real medicine is that it works on unconscious people, that is, it works whether the patient knows they got treatment or not. Quack medicine does not. Unfortunately general anesthesia is dangerous so we can run tests on accupunture using it. And, as you’ve alluded to, accupunture is especially difficult to double blind test.
One thing is clear, the theories in Traditional Chinese Medicine about undetectable magical energy flows are all ancient and ignorant attempts to explain how the human body works, created before we had modern science, chemistry, cellular biology, etc. One can be excused for believing back then but there is no excuse for continuing to believe this ancient claptrap.
If sticking needles in people can help relieve pain then we should study this possible phenomenon with science and discover the underlying mechanism, if any, which might allow us to leverage such a mechanism far more effectively and without sticking people with needles based on the wrong theory and wrong details–if, that is, accupunture actually works in the first place, which it doesn’t for things like nausea relief, smoking cessation or any of the non-pain-related symptoms it is ineffectively used to treat.
Errata:
“unfortunately general anesthesia is dangerous so we can’t run tests on accupunture using it.”
@shelleyp: Ah, my eye missed the link. That’s an interesting story, but it’s for employer vs employee and I wonder if the same would apply to a consumer situation. Bears looking into.
@Skeptic:
Well… Yes, and no. Again, we’re quibbling about definitions here, but we need to look at your assertion that “it has had no physiological effect“.
In almost every single published study of a prescription medicine, a placebo will have some noticeable effect. Here’s a random example from the latest copy of U.S. Pharmacist that’s sitting in my bathroom:
In this case, a placebo is 4% better than an established medication, and 10% better than doing nothing. And you will see results like this regularly. The placebo almost always has a small increase over baseline. Thus, I would really have to take issue with the notion that “it has had no physiological effect“.
@Hambriq:
I don’t know if you noticed, but there is something screwy with your conclusions. For one, placebo is a baseline, all treatments get placebo effect. Thus, for one treatment to get less than placebo effect the study would either have to have used a medicine that actually makes worse–thus subtracting from the –or the study would have to be flawed.
Again, from the article I cited earlier:
Oops, too much italic, forgot to close my tags (which Blogger won’t even let you do). Hey, if, perhaps consumerist would put up buttons for common formatting such as bold, italic, and
it would save us all a lot of headache.
Well, that and a quote in reply button rather than an “@” button.
@Skeptic:
I think we are in the same boat here. Let me explain.
The article made a good point that in many cases, a patient will report “feeling better”, despite physiological indicators showing that there have been no beneficial effects. This is the difference that you are focusing in on: that there is a massive disconnect between thinking you feel better, and seeing legitimate results. Believe me, this difference is certainly not lost on me.
You can’t fake an A1c, or your blood pressure reading, or your LDL count, or anything like that. And yet, in almost every case, you will see some type improvement in these areas due to a placebo. This is what I was trying to show with the random clinical trial that I posted in my second message.
The article had two responses to this, both of which I agree with. Firstly, that there are many physiological effects that can explain this phenomenon. It went to lengths to show the physiological relationship between a stimulus (such as one’s mood) and a response (such as one’s blood pressure). The point is, as the article stated: “[S]ince the mind is matter (the brain) and is connected to the rest of the body, there are some known physiological effects that do play a role.“
The second point that I also agree with is that the more concrete and physiological the symptoms, the lesser the “placebo effect”. Case in point, when you get cancer, you go see the doctor, not your local herbalist. As the article put, you can’t smile your cancer away.
However, there are two issues we need to look into. Firstly, a large number (some may even say the vast majority) of health-related problems have very few to no concrete physiological symptoms that can accurately be measured. Generalized pain? Depression? We are still measuring pain on a totally subjective “1 to 10″ scale, and we still for the most part diagnose depression based off of a glorified survey. In cases like these, the line between “feeling better” and “being better” is blurred, and when the issue is idiopathic, that line is almost nonexistent.
This is where I think the effective management of certain types of therapy can be very beneficial. I won’t speculate as to the physiological benefits of acupuncture, but suffice to say, if at the end of the day, Ben’s average blood pressure is 15mm/hg lower and he reports a prolonged elevated mood, then regardless of the mechanism of action, the treatment has “worked”. As a health care professional, my focus is on results. So naturally, the more concrete and the more physiological the issue, the less likely I am to be accepting of a placebo-type treatment. And likewise, if a particular ailment requires immediate, effective treatment, I will turn to an established cure, no matter how psychosomatic or “all in their head” I think the issue may be.
Again, what it boils down to is that I am focused on results. If a patient reaches a level of treatment that both he and I find acceptable, then I am happy, regardless of the method of treatment.
Or, to sum up seven paragraphs in five words: “If it works, it works.”
I see where you are going, but I have to ask “at what cost?” Once you start throwing out evidence based standards of treatment anything, efficacious or not, becomes a “legitimate” treatment. I’d like to keep a line between what works and what merely appears to work.
@Skeptic:
But the sole criterion of my standard of judgment for non-evidence based treatments is whether or not it’s efficacious. Because of that, it’s far too large of a leap to go from accepting something on a case-by-case basis to accepting everything.
I think there are a few important things to consider here:
1.) I am not extrapolating one individual’s success with a treatment to mean that every instance of that treatment will be effective. That’s what clinical trials are for.
2.) I make sure to differentiate between what works and what appears to work. That being said, in many cases, the line between “feeling better” and actually getting better is blurry and even nonexistent. These are the cases that I am most comfortable with alternative forms of treatment.
3.) The more risk involved, the more skeptical I am towards unproven remedies, and the more reluctant I am to accept them as the only course of treatment.
The key is being balanced, reasonable with your expectations, and thoroughly understand the risks vs. rewards of each type of treatment. I keep a mindful eye on the “slippery slope” potential of alternative treatments, but given the current crisis in the health care industry, I think it’s imprudent to look at the medical world in black-and-white terms.
First I wish to skip the whole thing about the acupuncture. But if you ever go to a doctor that your HMO sends you to and you need to sign an arbitration clause, just leave. The doctors that want you to sign those are the ones that are being pressured to do that by the insurance companies because they have screwed-up so many times in the past. This is your or your kids’ health you are talking about, just do not deal with a quack at all.
For me personally I was young and inexperienced and I signed it. The doctor misdiagnosed me and I was leaving in tears believing that my wife had been cheating on me. (The doctor diagnosed me with having herpes.) I saw a dermatologist office in the same complex and paid out of my own pocket only to learn that the previous doctor was a moron and I simply had a yeast infection.
Skeptic, ancient beliefs are not automatically invalid…though not always for the reasons the belief claims. For example:
Ancient beliefs: The soul leaves the body at death. You must bless someone who sneezes or their soul may escape their body, causing them great harm.
Modern knowledge: you are clinically dead for a moment when you sneeze.
You can debate the existence of souls all you like. But the belief is eerily accurate, assuming souls exist.
Just make it so you ALWAYS refuse to sign these agreements. That way you can confidently say “it’s nothin’ personal, just business”
Is it legal in California for a Doctor to cancel an upcoming appointment and refuse service to you in the future because you revoked (using Article 6) the Arbitration Agreement that they forced you to sign in their office?