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Secret and Sinister, How one Arbitrator tired to Silence Witnesses.
There are multiple bills working through Congress to end forced arbitration, mandatory arbitration and arbitration in investment agreements. Critics of arbitration often cite Bill Cosby and Harvey Weinstein as repeat offenders who used arbitration as a way to silence victims. But an arbitrator in Michigan believes that he can gag witness as well. The plaintiff in the case is speaking out about an arbitration order that prohibits witness from speaking.
The case involves two men, not a women; it’s not a sexual harassment case; it shows how corrupt secret arbitration can be.
In 2015, Dorothy Tobler, 84 of Ann Arbor, Mi., died, survived by her two sons. She left her almost $7 million estate to her second son, Stephen Tobler, 56 of Chelsea, Mi. Her first son, Eric Tobler, 60 of Ypsilanti MI., had burial rights.
A lawsuit followed after Stephen Tobler mutilated his mother’s corpse, and withheld her remains to prevent her burial. In the end, he would only allow his mother to be buried if, and only if, there was arbitration. Because this outraged the relatives, Stephen Tobler wanted the terms to say that “no one else knows about the facts in this case.”
“The Arbitrator wrote that no witness could speak about the case,” Eric Tobler said. “That’s just insane, and it violates the first amendment rights of witnesses.”
The arbitration order states “The Parties agree that they … have not disclosed, … any information or details concerning the lawsuits to any person or entity.”
Plaintiff’s attorney objected:
“¶10.a. The words “and have not disclosed” are inaccurate and not part of the agreement. At page 12, line 16 of the transcript, I stated, in reference to family members “they all know about the litigation.” Other family members were identified as witnesses on witness lists and have followed the litigation and know what the issues were, including the fact of the cremation, the dispute over the cremains.”
Because arbitration is normally private, arbitrators are writing irrational, overreaching, and unlawful terms in their orders. Secrecy allows harmful actors to hide their actions – including arbitrators. And this harm is the heart of the three bills aimed to curtail, or end arbitration. Judges, and defendants tend to act better, when settlement terms are public. Secrecy lets slimy, sinister people think they can get away with their bad acts.
“Sunlight is said to be the best of disinfectants,” said Louis D. Brandeis, former associate justice of the Supreme Court of the United States – in a 1913 Harper’s Weekly article, entitled “What Publicity Can Do.”
In the Tobler case, the arbitrator even demanded the plaintiff prevent others, including his attorney, from speaking about the case.
“Plaintiff, … shall take any action necessary and within his control to prevent future publication of any and all posts, notices, statements, press releases, digital press releases (or any type of medium meant to disseminate information) related to the Lawsuit.”
Plaintiff’s attorney objected:
” ¶10.f. It is not part of the agreement that Eric Tobler must prevent others from doing anything. That is not within his power. We submit this entire provision should be removed.”
“Half the reason I am publishing this is to shed the light on a corrupt arbitrator,” Eric Tobler said. “But the other is to let the public see how unlawful the process can be. A judge would never get away with these terms because court is public.”
Because arbitration is private, the public never sees most of these agreements. And that is the point for many of the bills moving through congress. The Forced Arbitration Injustice Repeal Act seeks to end the forced arbitration clauses in employment, banking, consumer and medical contracts.
Arbitration was never meant for disputes involving people – it was meant for settlement between two corporations. In that context, arbitration makes sense. The Investor Choice Act of 2021, seeks to remove arbitration terms from investor agreements. Lawsuits, not private settlements, keep brokerage firms honest.
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, seeks to end mandatory arbitration for sexual harassment disputes in employment and other contracts.
“Until arbitration is public, no one can really choose to enter a contract with an arbitration clause,” Eric Tobler states. “How can you agree to arbitration when the process is all concealed.”
Even businesses get tripped up with arbitration. Many people remember the Firestone and Ford tire controversy. For years the Ford Motor Company kept paying money in roll-over cases, but kept the cases hidden behind secret settlements. Then one woman refused a private deal. After Ford lost the case, and everything was exposed, Ford became a better company by fixing the problem and protecting its customers.
“Even lawyers don’t know what really happens in arbitration. Lawyers study public cases in law school,” Eric continues. “But where do you study arbitration cases? It’s all hidden, obscured, secret. – it’s occult.”
Eric Tobler adds his support to these three bills and encourages others to do the same on his website: https://erictobler.com/support-laws-to-ban-arbitration/
Forced Arbitration Injustice Repeal Act
Senators Kirsten Gillibrand, D-N.Y., and Lindsey Graham, R-S.C.,
House the bill was introduced by Reps. Cheri Bustos, D-Ill., and Rep. Elise Stefanik, R-N.Y
U.S. Representatives Pramila Jayapal (WA-07), Cheri Bustos (IL-17), and Morgan Griffith (VA-09) joined U.S. Senators Kirsten Gillibrand (D-NY), Lindsey Graham (R-SC), and Dick Durbin (D-IL) today in announcing bipartisan and bicameral legislation to empower sexual assault and harassment survivors. Several of the lawmakers announced the introduction of the bill at a press conference today with former Fox News anchor Gretchen Carlson. July 14, 2021.
The Arbitrator who wrote the order in Tobler v. Tobler: John A. Hohman, Jr. (ret.) Mediation & Arbitration. 320 N. Main Street, Suite 420 Ann Arbor, MI 48104. Phone: (734) 790-5169. Email: firstname.lastname@example.org.