highlights and [bracketed comments] added

Jamie Leigh Jones was a 20-year-old Halliburton employee in 2005 when she was sent to work in Iraq. She'd been there just four days when she joined a small group of Halliburton firefighters outside her barracks at the end of the day. One of them gave her a drink. She took two sips, and Jones says that was the last thing she remembered.

"I woke up inside the barracks," she says. "It was actually inside my barrack room, and that's when I noticed I had been severely beaten and was actually naked."

Jones had been raped, repeatedly. By how many men, she's not sure. But she says one man was still naked and asleep in the room when she came to.

"Apparently, he knew he was beyond the reach of any jurisdiction, so he was still brazen enough to be there," she says.

Jones was escorted by security to the company clinic for a rape examination. When the rape kit examination was done, the evidence was turned over to Halliburton security.

The young woman's breasts were so badly mauled that she is permanently disfigured. It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate.

Seeking Justice Through a Suit

Justice Department officials refused to explain or comment in any way to NPR about the case. Jones has decided that if she can't have her day in criminal court, she'll sue Halliburton and its former subsidiary, KBR, in civil court.

"I want corporate accountability," she says. "I was so brutalized that I'm going to have to remember this the rest of my life. And Halliburton was so uncompassionate that they even let the men work there, still, after I went home." 

Heather Browne, director of communications at KBR, says that while the company can't speak to the facts since the case is ongoing, it denies any liability in the attack. And she argues that any dispute with Jones, even one involving charges of rape, must go to arbitration.

So Jones is now going to court seeking the right to sue. She has become one of the nation's leading arbitration reform advocates.

An Arbitration Culture

If Jones' case is remarkable, the fact that arbitration is involved is not. In the past 20 years it has become a dominant feature in the legal relationship between American corporations, their employees and their customers.

If you use credit cards, have a cell phone contract, bought a house from a builder or put your mother or father in a nursing home, you have very likely signed away your right to be heard in court if there's a problem. It's called pre-dispute mandatory binding arbitration.

Public Citizen's David Arkush, one of the country's leading researchers on arbitration, says many consumers have no clue as to the rights they're signing away.

"In the fine print of those contracts is a provision that says that they can never sue the company if they have a dispute," Arkush says. "Instead they have to go a private, secret tribunal chosen by the company." 

A Losing Record For Consumers

Arbitration is a closed, private process, often with little or no written record. But one state, California, changed its law to require that arbitration results be publicly recorded. Public Citizen staff reviewed 34,000 California cases, and Arkush says the results speak volumes.

"Overall, consumers lost 94 percent of the time," he says.

The arbitration industry disputes that number. But it does not disagree that corporations win more of the time. The disagreement is about whether this is evidence of bias or a reflection that corporations bring stronger cases.

Mike Kelly, spokesman for the National Arbitration Forum — one of the country's largest arbitration firms — says it's the latter.

"You're not going to bring a case that you're going to lose," he says. "Frankly, you're not going to bring a case that you think you have a chance to lose."

Kelly says the results would still be lopsided if these same cases went to court instead of arbitration. And Kelly says his arbitrators, which the NAF calls neutrals, are men and women without bias.

"What you're really doing is taking a shot at all those individual neutrals who are handling these cases," he says.

Rulings And Consequences

Elizabeth Bartholet was one of the NAF's arbitrators for a time. She's a law professor at Harvard and for two decades has moonlighted as a part-time arbitrator. The first 19 cases she arbitrated for the National Arbitration Forum were all credit card cases. She ruled each time for the credit card company.

Then, on the 20th case, she ruled for the consumer. After reviewing the evidence, Bartholet awarded the cardholder $48,000. And with that, her career as an NAF arbitrator was effectively over. She says she was stricken from her remaining cases.

"I called the NAF and spoke to the case manager, and she agreed the reason I was being removed was because I had ruled in this one case against the credit card company," Bartholet says.

The NAF says nothing improper was done, that companies and consumers alike are allowed to strike an arbitrator from a case. Bartholet counters that arbitrators know full well that if they rule against corporations too often, their income will dry up.

"NAF arbitrators are given a form where every line is filled out in terms of the amount it is suggested that you rule," she says. "And so all you need to do is fill in to the right [of that line] the exact same number. And then at the bottom, you total it up and they give the attorneys' fees number. And there's no indication that you should even write a one-sentence opinion."

Bartholet says nowadays, she will arbitrate only when both parties are roughly equal in power and enter into arbitration voluntarily.

Push For Reform

The Arbitration Fairness Act now before Congress would ban clauses that make arbitration mandatory for the resolution of disputes — restoring to consumers and employees the choice of taking their case to court.

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, says that making arbitration voluntary will lead to its extinction. [HOT: That would be good for consumers.]

She also says it will clog the courts with needless litigation. "It really is human nature," she says. "When people have an argument, they really want to fight it out. And the best place to fight it out is in court."

MICHELE NORRIS, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.

MELISSA BLOCK, host:

And I'm Melissa Block.

You may have done this dozens of times with little more than a shrug - you sign a credit card or cell phone or auto loan contract without reading the fine print. No big deal, unless there's a dispute, and that's when you find out you're committed to mandatory binding arbitration. This out-of-court process for handling problems has been around for years, and it's kept thousands upon thousands of cases out of the court system. Businesses win the vast majority of arbitration cases and that has consumer advocates and many members of Congress calling for changes.

NPR's Wade Goodwyn reports now and we should warn you, this story begins with a description of a brutal assault that is not suitable for young listeners.

WADE GOODWYN: Jamie Leigh Jones was a 20-year-old Halliburton employee, when in 2005, she was sent to work in Iraq. She'd been there just four days when she joined a small group of Halliburton firefighters outside her barracks at the end of the day. One of them gave Jones a drink. She took two sips, and that was the last thing she remembered.

Ms. JAMIE LEIGH JONES (Employee, Halliburton): I woke up inside the barracks. It was actually inside my barrack room, and when I woke up, that's when I noticed that I had been severely beaten and I was actually naked.

GOODWYN: Jones had been vaginally and anally raped, repeatedly. By how many men, she's not sure.

Ms. JONES: I discovered that one man was brazen enough to still be in the room. The fact that, apparently, he knew that he was beyond the reach of any type of jurisdiction, he was brazen enough to still be there.

GOODWYN: Jones was taken to the clinic where a rape examination was done by the company doctor, and the evidence given to Halliburton security guards. Jones' breasts were so badly mauled, she's permanently disfigured. In the four years since the attack, no indictments have been brought. Jamie Leigh Jones has decided that if she can't have her day in criminal court, she'll sue Halliburton and its former subsidiary, KBR, in civil court.

Ms. JONES: I want corporate accountability. I was so brutalized that I'm going to have to remember this for the rest of my life, and Halliburton is so uncompassionate that they even let the men work there still, after I was sent home.

GOODWYN: The company denies any liability in the attack. And it argues that any dispute, even one involving charges of rape, must go to arbitration because that's what it stipulates on her employment contract. So Jones is going to court seeking the right to sue, and Jones is fighting on other fronts, too. She's become one of the nation's leading advocates for arbitration change testifying on Capitol Hill.

Ms. JONES: Good afternoon. I am standing before you to share with you a personal tragedy. I do this to bring awareness to legislation, but…

GOODWYN: If Jones' case is remarkable, the fact that arbitration is involved is not. In the last 20 years, it has become a dominant feature in the legal relationship between American corporations and their customers. Though you may not be aware if you use credit cards, or have a cell phone contract, if you bought a home from a builder or put your mother or father in a nursing home, you have likely signed away your right to be heard in court if there's a problem. It's called pre-dispute mandatory binding arbitration.

Mr. DAVID ARKUSH (Public Citizen): In the fine print of those contracts is a provision that says that they can never sue the company if they have any kind of dispute. It doesn't even matter if the company just, you know, outright steals money from their account. They still can't sue over it. Instead they have to go to a private, secretive tribunal chosen by the company.

GOODWYN: Standing outside a congressional subcommittee hearing room where he just testified, Public Citizen's David Arkush is one of the country's leading researchers on arbitration. It is not easy to find information. Arbitration is a closed, private process, often with little or no written record. But one state, California, changed its law to require that arbitration rulings, the results at least, be publicly recorded. And in the largest arbitration study ever done, Arkush and his staff ploughed through 34,000 California arbitrations.

Mr. ARKUSH: Overall, consumers lost 94 percent of the time.

GOODWYN: While the arbitration industry disputes that number, there is no disagreement that corporations win more of the time. The disagreement is about whether this is evidence of bias or a reflection that corporations bring stronger cases. Mike Kelly is a spokesperson for the National Arbitration Forum, one of the country's largest arbitration firms.

Mr. MIKE KELLY (Spokesperson, National Arbitration Forum): You're not going to bring a case that you're going to lose. Frankly, you're not going to bring a case you believe you have a chance to lose.

GOODWYN: Kelly says the results would still be lopsided even if these same cases went to court instead of arbitration. And Kelly defends his arbitrators, which the NAF calls neutrals, as men and women of integrity.

Mr. KELLY: In order for there to be bias, there has to be a neutral at the end of the process, who is willing to bend - bend in a way that is contrary to their ethics. And so, what you're really doing is you're taking a shot at all those individual neutrals out there who are handling these cases.

Professor ELIZABETH BARTHOLET (Law, Harvard University): I've been doing arbitration for more than two decades, but with the NAF, I only did it for a couple of years.

GOODWYN: Elizabeth Bartholet is a professor of law at Harvard University and a part-time arbitrator. The first 19 cases she arbitrated for the National Arbitration Forum were all credit card cases, and she ruled each time for the credit card company.

Prof. BARTHOLET: Then I had a case in which I did decided against the credit card company.

GOODWYN: In this case, Bartholet found the credit card company had defrauded the customer and ruined his credit. She awarded him $48,000. And with that, her brief career as an NAF arbitrator was effectively over. She was stricken from her remaining cases.

Prof. BARTHOLET: I called the NAF and spoke to the case manager, and she agreed that it was likely the reason I was being removed was because I had ruled in this one case against the credit card company.

GOODWYN: The NAF says nothing improper was done that companies and consumers alike are allowed to strike an arbitrator from a case. But Bartholet says arbitrators know full well that if they rule against corporations too often, their income will dry up. She describes how the process works.

Prof. BARTHOLET: NAF arbitrators are given a form where every line is filled out in terms of the amount that it suggested that you rule. And so all you need to do is fill in on the line to the right the exact same number. And then at the bottom, total it up and they fill in the attorney's fees number. And there's no indication that you should write even a one-sentence opinion.

GOODWYN: Public interest advocates say they don't want to make arbitration go away, they just want a more level playing field. The Arbitration Fairness Act now before Congress would give consumers and employees the choice of going to arbitration after a dispute has occurred. But Lisa Rickard with the U.S. Chamber of Commerce argues that making arbitration voluntary will make it extinct. And furthermore will clog the courts with needless litigation.

Ms. LISA RICKARD (U.S. Chamber of Commerce): It really is human nature. When people have an argument, they want to fight it out. And the best place to fight it out is in court.

GOODWYN: Even in a Congress now dominated by Democrats, arbitration reformers say they are unsure of their chances. The Arbitration Fairness Act has been introduced in both the House and Senate, and hearings are expected after the summer break.

  Wade Goodwin, NPR (National Public Radio), 06/09/2009
Source: http://www.npr.org/templates/story/story.php?storyId=105153315

At NPR's Web site, you can find a lot of resources to learn more about the arbitration debate. Or read Home Court Advantage, an excellent paper on arbitration in the homebuilding industry, by Public Citizen. Here's our summary:

• Arbitration is a secretive, kangaroo court style adjudication proceeding that often costs far more than a civil suit, carries more risk, and is subject to minimal oversight or judicial review.
• Your contract and warranty agreement define your rights and almost always require binding arbitration that favors your contractor because arbitration firms rely on them for their business.
• Even if your sales contract lets you opt out of arbitration, your warranty agreement can suck you back in. Builders often present buyers with an extended home warranty as a Thank-You gift at closing, but the real purpose is to offload their warranty obligations and force you into binding arbitration.
• We believe the industry-wide practice of including binding arbitration clauses in non-negotiable contracts is a restraint of trade when buyers have no choice, such as in The Woodlands, a Houston suburb where all 10 builders do this.   

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