Both state and federal law have long favored arbitration provisions as part of contracts. The New Jersey Supreme Court has recently held, however, that arbitration’s “favored status” does not mean that every arbitration clause is enforceable. A court can invalidate an arbitration clause for the same reasons that it can declare a contract to be unenforceable. As such, an agreement to arbitrate must be the product of “mutual assent, as determined under customary principles of contract law.” NAACP of Camden Cnty. E. v. Foulke Mgmt., 421 N.J. Super. 404, 424 (App. Div. 2011). Because arbitration involves the waiver of a right to bring a claim in a court of law, judges are careful to assure that both parties have agreed to the provision. The arbitration clause in the case of Patricia Atalese v. U.S. Legal Servs. Grp., L.P. involved a provision that did not explain what arbitration was, how it differed from an in-court proceeding, and was not written in clear language that would be understandable to the average consumer. Although an arbitration clause does not have to identify the specific right that is waived, and does not have to contain a set of prescribed words, it must, in a general and broad way, explain that the plaintiff is giving up a right to bring claims in court or have a jury resolve the dispute. Patricia Atalese v. U.S. Legal Servs. Grp., L.P. (September 23, 2014). The arbitration agreement in Atalese did not clearly signal to plaintiff that she was surrending her right to pursue her claims in court and thus the agreement was unenforceable.

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