Mediation and Arbitration Clauses in Franchising
A lot of research goes into selecting just the right franchise to invest in. The more time that you spend looking into prospective franchisors, the better your chances of making a smart decision that you will be satisfied with 10-15 years down the line. There are a lot of important questions to ask and a lot of people to approach with those questions.
If you take the information of your prospective franchisors at face value, then you are setting yourself up for disaster. Franchisors have one main goal – selling their brand. Franchisors need investors buying franchises if they want to profit. As such, they are most often inclined to focus on the benefits of signing up with them and gloss over the negative.
Of course, if there is negative to be seen, then much of it will be there in plain sight for those discerning enough to look for it. No matter how much a franchisor might wish to gloss over negatives, if the company’s franchise owners have had problems with them, then there are probably some telling clues in the Franchise Disclosure Document.
Any franchisor is legally obligated to disclose through their FDD any litigation against the company brought by franchisees. This is true regardless of whether the case went in favor of the franchisor or the franchisee. Even in those instances where lawsuits went in favor of the franchisor, those cases can shed light into issues that may arise with that franchisor should you choose to pursue franchise ownership.
On the other hand, if there are no lawsuits listed and a franchisor has been in franchising for some period of time, then there is another important question you should ask. No matter how great a franchisor might be, there isn’t much chance that no franchisee has had a serious grievance even once over the life of the franchising company.
A lack of litigation should be a red flag that the franchisor may have a mediation and arbitration clause in the franchising agreement. If you suspect that this might be the case, then it is something you should definitely investigate. Mediation and arbitration clauses, though rare, can have a major impact on franchisees.
Arbitration is, essentially, a truncated lawsuit. Rather than taking a complaint into court, both sides agree before hand to be bound by the decision of an arbitrator or arbitrators. Arbitration happens more or less in the same way as a court case, with both sides presenting their cases. An arbitrator then decides how the two parties should proceed. Mediation is much the same, but is less formal and less binding.
Mediation and arbitration are not bad, in and of themselves, but such clauses can severely limit the recourses available to a franchisee should trouble with the franchisor arise. Such clauses prohibit pursuit of litigation (other than by violation of contract). As such, if you feel that you have been wronged by your franchisor, you may find yourself obligated to adhere to an arbitrated ruling that quite likely would not be in your favor.