NAF would not comment on the findings because it had not participated in the analysis, but maintains that its arbitrators are neutral. Edward Anderson, managing director of NAF, says that caseloads of arbitrators probably reflect types of cases. "Undoubtedly, the more complex the disputes, the more arbitrator time would be involved and the fewer cases an arbitrator would be able to handle," he writes in an e-mail, noting that cases where one party does not respond are less complex than those where there is a controversy. Indeed, arbitrators who heard few cases were far more likely to hear contested cases than other arbitrators.
But consumer advocates say arbitrators have strong incentives to rule in favor of business. One commonly applied rule allows either party to reject an arbitrator for any reason. Businesses can use this "one strike" rule to their advantage, say consumer advocates, since they may have more information on an arbitrators' prior rulings than consumers do. And the knowledge that rulings bring repeat business may create financial pressures for arbitrators.
"Arbitration work is often very lucrative, and arbitrators know that if they rule against a corporate defendant too frequently or too generously (from the standpoint of that corporation), they will lose the work," wrote F. Paul Bland, staff attorney at Public Justice, a Washington, D.C.-based nonprofit legal services group that opposes mandatory binding arbitration agreements in consumer contracts, in comments for the Congressional hearing.
NAF's Anderson denies any charges of pro-business bias. He says the arbitrators who work for NAF are former judges and attorneys with at least 15 years' experience. Strict guidelines prevent any financial conflicts of interest. "To suggest, as some do, that their compensation for these cases influences their integrity would be unwise, if not insulting," writes Anderson. "After all, many of these arbitrators are former judges, and all have a sincere interest in helping parties resolve disputes fairly and efficiently."