Caleb Gerbitz


Arbitration is a favored adjudicatory mechanism because it is efficient, effective, and informal compared to judicial litigation. Scholar Thomas Carbonneau has noted that arbitration is “America’s optimal trial procedure.” The ubiquity of pre-dispute agreements to arbitrate in consumer contracts makes arbitration the dominant method to resolve such disputes. Yet, despite its hallmarks of accessibility and informality, arbitration’s reliance on face-to- face proceedings limits its benefits. Online dispute resolution (ODR) has grown in popularity among e-commerce retailers over the last two decades—and more recently within court systems.5 However, ODR’s rise has not meaningfully affected how pre-dispute agreements to arbitrate are drafted or enforced. In this article, I prospectively explore the intersection of mandatory arbitration and ODR by considering whether agreements to arbitrate online would be enforceable. I conclude that such agreements would be enforced by U.S. courts and that ODR’s benefits may make this a favorable outcome. It is worth noting at the outset that while my analysis could be applied broadly, I chose to focus on predispute agreements to arbitrate in the consumer context. Business-to-business contracts could just as easily include pre-dispute agreements to arbitrate online, but as courts are less likely to view those agreements with suspicion, they warrant little consideration here. Employment contracts also frequently include agreements to arbitrate, but parties are less likely to prefer online arbitration in those cases because parties are more likely in geographical proximity with one another and their chosen arbitration venue, minimizing the desire for an online forum. Thus, by focusing on arbitration of consumer disputes, I can test the validity of pre-dispute agreements in the context they are most likely to be implemented and challenged. In Part I, I begin by surveying the current use of ODR and arbitration in consumer disputes and studying why pre-dispute agreements to arbitrate online are not yet in use. Next, in Part II, I consider the ultimate question of whether pre-dispute agreements to arbitrate online are enforceable. Finally, in Part III, I explore several considerations stemming from the conclusion that agreements to arbitrate online are enforceable.