the Zealous

14 Apr 20

From Judge Alsup's Order re Motion to Compel Arbitration, Abernathy v. Door Dash (ND Cal. Feb. 10. 2020):

For decades, the employer-side bar and their employer clients have forced arbitration clauses upon workers, thus taking away their right to go to court, and forced class-action waivers upon them too, thus taking away their ability to join collectively to vindicate common rights. The employer-side bar has succeeded in the United States Supreme Court to sustain such provisions. The irony, in this case, is that the workers wish to enforce the very provisions forced on them by seeking, even if by the thousands, individual arbitrations, the remnant of procedural rights left to them. The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order.

This case is addressed in the Redline query, Pro-provider arbitration clause for B2C online terms of service in the US.
15 Mar 20

One common negotiating mentality among lawyers is “go hard or go home”, but according to a Wharton professor of operations and an Uber data scientist (Knowledge@Wharton Blog, Hard Negotiations: Why a Softer Approach Yields Better Outcomes), harmonious bargaining, ie, approaching negotiations as a joint problem to be solved – or even, foregoing any negotiation – can yield better long-term results.

In a lot of these cases, the negotiation is only the beginning of our relationship or interaction. We’re meeting people and having to interact with them again and again after the negotiation process. It’s not that when we leave the table everyone forgets what has happened. We remember the price we reached or some agreement we reached, but we also remember how we reached that outcome, and we form perceptions of our counterparts. These relationships can have long-term implications beyond the negotiation table.
When we think about negotiation strategies, we tend to think, “Oh, we’re going to negotiate anyway. Let’s see how we navigate that situation.” But in many cases we might be better off not even starting this process — not engaging in negotiation that may end up creating conflict.