Are Arbitration Clauses Effective for Small Businesses?

When drafting contracts, many small business owners face the question of whether to include an arbitration clause. Arbitration is a private process where disputes are resolved outside of court, usually by a neutral third party. For small businesses, arbitration clauses can offer meaningful benefits, but they also carry important trade-offs. This newsletter highlights the key considerations for entrepreneurs weighing arbitration as part of their legal strategy.

THE POTENTIAL BENEFITS OF ARBITRATION

For small businesses, the most significant advantage of arbitration is efficiency. Proceedings are often faster and less formal than litigation, saving both time and legal expenses. Recent data from the American Arbitration Association shows that consumer arbitrations involving claims under $10,000 required claimants to pay an average of only $96 upfront, a fraction of typical court filing and service fees. Arbitration is also private, allowing businesses to resolve disputes without the public exposure of court filings, and it gives parties more flexibility to select arbitrators with industry-specific expertise. For example, in technical sectors or for construction disputes, the ability to choose an arbitrator familiar with the subject matter can be invaluable.

THE CHALLENGES AND RISKS

Despite these benefits, arbitration has drawbacks that small businesses must weigh carefully. One concern is the finality of the process: arbitration awards are binding and extremely difficult to appeal, even if the arbitrator makes a mistake. Costs can also escalate, where filing fees can start at $2,000 for two-party matters, significantly higher than the fees in many courts. In addition to paying arbitrators by the hour, parties must also account for the legal fees they pay to their attorneys, which can make the overall expense substantial. Another challenge is that arbitration clauses are widespread in contracts drafted by larger players, often skewing the balance of power. The Economic Policy Institute has reported that more than half of private-sector employers already require arbitration in employment contracts, and nearly a third of those also include class-action waivers. In consumer finance, the Consumer Financial Protection Bureau has found that arbitration clauses appear in about 53% of credit card agreements and more than 90% of prepaid card contracts, meaning small businesses may find themselves bound by terms they did not negotiate.

BALANCING THE DECISION

Ultimately, whether arbitration clauses are effective depends on the specific circumstances of the business and the contract. For ongoing relationships with trusted partners, arbitration may provide a streamlined and less adversarial path to resolution. But for small businesses engaging with larger corporations or consumers, arbitration clauses may limit options and restrict leverage. The prevalence of arbitration in both employment and consumer markets underscores its growing importance, but also signals the need for careful tailoring to avoid unintended consequences.

CONCLUSION

Arbitration can be a valuable tool for small businesses seeking efficiency, privacy, and subject-matter expertise in dispute resolution. At the same time, its finality, potential costs, and risk of imbalance must be considered before adopting these clauses wholesale. For many small businesses, the best approach may be to draft arbitration provisions narrowly, allowing arbitration for certain disputes while preserving the option to go to court in others.

The SJS Law Firm, PLLC remains committed to guiding small business owners through contract negotiations and dispute resolution planning. For a complimentary consultation, please contact us at (202) 505-5309.

Source Notes: American Arbitration Association,  Consumer Arbitration Fact Sheet; Economic Policy Institute,  The Future of Mandatory Arbitration Clauses in Employment Contracts (2023); Consumer Financial Protection Bureau,  Arbitration Clauses in Consumer Finance Markets (2024); JAMS,  Arbitration Schedule of Fees & Costs.