On Consumer Dissatisfaction: Consider Arbitration As an Alternative Dispute Resolution Mechanism

ABSTRACT - Since its development in 1972, consumer arbitration is emerging as a fast, inexpensive and informal dispute resolution mechanism for both consumers and businesses. Arbitration is viewed as a dispute resolution mechanism which may prove particularly effective in matters involving amounts of money too small to justify use of formal litigation mechanisms. This relatively new and potentially effective redress mechanism is described and evaluated in this paper based on one agency's experience with consumer arbitration.


Stephen A. Goodwin, Vijay Mahajan, and Bhal J. Bhatt (1979) ,"On Consumer Dissatisfaction: Consider Arbitration As an Alternative Dispute Resolution Mechanism", in NA - Advances in Consumer Research Volume 06, eds. William L. Wilkie, Ann Abor, MI : Association for Consumer Research, Pages: 460-465.

Advances in Consumer Research Volume 6, 1979      Pages 460-465


Stephen A. Goodwin, State University of New York at Buffalo

Vijay Mahajan, Ohio State University

Bhal J. Bhatt, State University of New York at Buffalo


Since its development in 1972, consumer arbitration is emerging as a fast, inexpensive and informal dispute resolution mechanism for both consumers and businesses. Arbitration is viewed as a dispute resolution mechanism which may prove particularly effective in matters involving amounts of money too small to justify use of formal litigation mechanisms. This relatively new and potentially effective redress mechanism is described and evaluated in this paper based on one agency's experience with consumer arbitration.


Recent years have witnessed an outpouring of studies and recommendations concerning the causes of and remedies for consumer dissatisfaction. The scope of these studies has included the development of theory of consumer dissatisfaction and complaining behavior (Anderson, 1973; Gr°nhaug, 1976; Day and Landon, 1977), examinations of the nature of complaints (Sheth and Mammana, 1974; Diamond, 1976; Day and Bodue, 1977; Zaltman, Srivastava and Deshpande, 1977; Day and Landon, 1977; Andreason and Best, 1977), description of the demographics of complainers (Liefield, Edgecombe and White, 1975; Westbrook, 1976), and evaluations of different dispute resolution mechanisms (Jones and Boyer, 1972; Schrag, 1973; Ittig, 1976).

While disputes between businesses and consumers over quality, performance, warranty and service have occurred since the beginning of mankind's recorded history, the rapid rise in the number and types of such disputes since the mid-1960's has become a subject of concern for business, government, the legal profession and the consumer. It is important to recognize that, while the increasing number of consumer disputes may point to basic problems in our economic system, and certainly require a better understanding of consumer complaining behavior, the settlement of disputes in an expeditious and impartial manner is a major goal advocated by consumer protection groups (Jones and Boyer, 1972). This paper is primarily concerned with a specific dispute resolution mechanism: Consumer Arbitration. This relatively new and potentially effective mechanism will be described and evaluated; one agency's experience with arbitration will be summarized; and implications will be discussed. We are of the opinion that consumer arbitration is generally an unknown quantity (Lippman, 1974; Resnick, 1974; Wexler, 1977); our primary goal, therefore, is to increase the awareness level of marketing educators and practitioners in this regard.


Numerous studies have recently been completed which detail the nature and usage of dispute resolution mechanisms. For example, in a telephone survey dealing with complaints recalled by respondents with respect to any type of product or service (Warland, Herman and Willets, 1975), it was found that 25% of the 1,215 respondents in a national probability sample indicated that they had recently experienced extreme dissatisfaction but had done nothing about it. In another study (Day and Landon, 1977) the response "I didn't do anything at all" was checked by 26.5% of the sample with respect to durable products, and by 16% for services and intangible products. Furthermore, 54% of the respondents indicated they would never again purchase the particular nondurable item that they had designated as the most unsatisfactory and 45% of the respondents reported that they had told their friends about their unsatisfactory experience and urged them to boycott.

Similar results have been found in other studies (Zaltman, Srivastava and Deshpande, 1977; Day and Bodur, 1977) underscoring the fact that many dissatisfied consumers decide not to seek out formal redress mechanisms. In the Day and Bodur study (1977), it was found that only 26.8% of their sample sought any kind of specific redress.

Typical reasons cited for failure to initiate formal complaints and seek specific redress action include "It wasn't worth the time and effort", "I didn't get around to it", "I didn't think it would make any difference", "I didn't know what to do or where to go to get help" (Day and Landon, 1977) and so forth. Of those that do seek specific redress, we find that very few choose some kind of legal action (e.g., 11% in the Zaltman, et al., study; 6% in the Day and Bodur study; 5% in the Day and Landon study). Common reasons for failure to select such legal mechanism alternatives would include cost, inconvenience, ignorance, etc.

Interestingly, consumer arbitration (a quasi-legal alternative) is not even listed as an alternative in the studies discussed above. However, since Better Business Bureaus are the primary developers and users of this form of dispute resolution, we can see how often the BBB's are contacted by complaining consumers. Day and Landon (1977) find that roughly 6% of their sample contacted the BBB. Day and Bodur (1977) find that less than 1% contacted the BBB. Zaltman, et al., (1977) find that roughly 5% of their sample contacted an agency such as the BBB.

These figures underscore the fact that few dissatisfied consumers resort to formal dispute resolution mechanisms, of which consumer arbitration is one alternative. Perhaps one of the biggest reasons is ignorance that such a mechanism exists and what it's all about.


The National Council of Better Business Bureaus, Inc., has been instrumental in instituting consumer arbitration as a formal, quasi-legal redress mechanism. Such programs were initiated in 1972 and are currently in operation in more than 100 out of 143 local Better Business Bureaus (BBB). Arbitration, as defined by the American Arbitration Association, is the process by which two parties authorize an impartial party or panel to resolve their dispute with a final and binding decision. Arbitration, per se, has developed over the years in a variety of fields (particularly in labor relations, accident claims, and medical malpractice). A thorough review of its history, procedure, etc., can be found in Elkouri and Elkouri (1973).

It is important to point out that Better Business Bureaus resort to consumer arbitration only if efforts at conciliation or mediation have failed. When complaints are initially made, the BBB tries to resolve the dispute first by conciliation. Here, the BBB merely contacts both parties to the dispute and encourages them to effect a compromise solution and reach an accord without the intervention of a third party. Should this fail, the BBB then assumes the role of a mediator. Mediation may be defined as intervention between conflicting parties to promote reconciliation, settlement or compromise. The key here is once again compromise -- the mediator's function is to persuade the parties to come to a voluntary settlement of their dispute. Neither conciliation nor mediation are legally binding dispute resolution mechanisms. Nevertheless, the BBB seeks to initially solve all complaints/disputes by conciliation or mediation. If both fail, however, then arbitration is suggested as a viable alternative.

Figure 1 highlights the major steps involved in a typical consumer arbitration process.

The arbitration process commences when one party serves notice to the other party through the tribunal (BBB) of a desire to submit an existing dispute to an arbitrator for a binding decision. When neither party has previously agreed to arbitration, this notice is in the form of a "submission agreement." If either one or both parties are precommitted to arbitration then this notice is in the form of "demand for arbitration." Precommitment to arbitration normally occurs when a business firm signs an agreement with a "third party", such as the Better Business Bureau, to submit any unresolved dispute to arbitration, or when arbitration is specifically inserted by parties to a contract. The latter case is generally frowned upon. A typical point of view in this regard is that of Rhoda Karpatkin, Executive Director of Consumers Union.

Consumers should not be committed to arbitration at the time of sale by signing such contracts drafted by merchants. They may be deprived of the opportunity to go to court; they may be agreeing to higher fees than courts would charge; they are losing rights to a jury trial or an open hearing, or to have rules of evidence apply; ... and they may be waiving other safeguards enacted to protect debtors and other consumers, and to insure due process in debt collection proceedings. (Wexler, 1977, 41)

The BBB tribunal conveys the request for arbitration to the other party, along with a submission agreement, descriptive literature pertaining to the dispute and a copy of arbitration rules specifying the procedure. If the other party refuses to submit the dispute to arbitration or fails to return the submission agreement within a stipulated time limit, the arbitration process terminates here and the initiating party is so advised. The initiating party may then choose to pursue an alternative redress recourse on his own (e.g., litigation).

Upon receiving a satisfactory execution of the arbitration agreement, the BBB tribunal commences the arbitration process by submitting to both the parties a list of arbitrators with short background profiles of each. With the concurrence of both parties and based on their selection an arbitrator is appointed. Sometimes, a panel of three arbitrators is selected at the suggestion of the tribunal or if stipulated by industry rules or contract provision. In these cases, each party selects one arbitrator from the list provided. These two arbitrators then choose a third arbitrator from the tribunal pool. This third arbitrator serves as chairman of the three person panel. In case of a panel, a majority of two is needed to decide all questions. In case of lack of concurrence among the parties, the agency may appoint arbitrator(s) under special circumstances.



A "Notice of Hearing" is sent to all parties concerned informing of a mutually agreed upon time, place and date. Following the rules of arbitration, an arbitrator hears the case presented by two parties. The parties may be accompanied by attorney if they so desire, but have to inform the tribunal of this decision prior to the hearing. An arbitrator stipulates the issues for arbitration with the concurrence of both parties, takes testimony, evidence, proof, and expert witnesses' testimony and on-sight inspection into account for determining the facts pertaining to the case. Based on the information, an arbitrator writes his "opinion" and issues an "award" recommending remedial redress to the dispute(s). His award is final and binding to both the parties. A challenge to the arbitrator's award is possible in the courts, but on very narrow grounds in most states. For example in New York State a motion to vacate the award is possible if fraud was involved in procuring the award, partiality of an arbitrator proven, issuing an imperfect award where an arbitrator exceeded his authority, or where either the arbitrator or the administering agency failed to follow provisions of the State statutes.

Upon receiving the arbitrator's award, the tribunal conveys it to both parties informing them of its binding and final nature and requiring its implementation within time limits and conditions stipulated by the award.

Advantages of Consumer Arbitration

A thorough review of the sparse literature on consumer arbitration has uncovered a number of dimensions deemed as major advantages of consumer arbitration over other formal dispute resolution mechanisms such as litigation (e.g., in small claims court or full court proceedings, or class action suit) or consumer self-help organizations (e.g., Consumers Education and Protective Association) (National Institute for Consumer Justice, 1972; Wexler, 1971). Advantages include speed, economy, expertise, privacy, informality, convenience, fairness and finality.

According to a National Institute of Consumer Justice report (1972), when comparing consumer arbitration to litigation, the average time to complete the entire arbitration process is roughly 60 days which is substantially shorter than a full court trial dealing with a civil suit.

That arbitration is viewed as being more economical is perhaps a direct result of the "speed" of the process. The arbitration alternative requires minimal expense (For example, in Western New York, the BBB only requires five dollars from the consumer and BBB members; non-BBB members are assessed a charge of thirty dollars. Except under extraordinary conditions, this is the total cost involved to both parties.) to either party. Part of the economy is also derived from the fact that the use of lawyers in the process is minimal; there is no fee for the participating arbitrator(s); and there is generally no fee for expert witnesses.

The expertise dimension pertains to the fact that the arbitrator(s) jointly selected by the parties in dispute is "theoretically" an expert in both arbitration procedures and has pertinent knowledge and background in the sales or product area under consideration. While it is not always possible to assign the "best" arbitrator to each case (in the sense that the arbitrator does have special expertise in the sales or product area involved), the attempt is generally made. In any event, the arbitrator may solicit expert advice when needed.

With regard to privacy, primarily this is advantageous to the business in that arbitration protects business from potentially damaging publicity. The records of the arbitration hearing and award/resolution are not a matter of public record. The media would be hard-pressed to keep track of the proceeding.

As for informality, it is the consumer who benefits primarily because formal court proceedings are likely to be perceived as extremely intimidating. Related to this is the fact that "arbitration allows for independent inquiry and investigation by the arbitrator" (National Institute of Consumer Justice, 1972) thus giving the arbitrator much more flexibility than the courtroom judge. As Wexler (1971) points out, "the arbitrator may submit evidence according to his discretionary test of relevance'' and this is advantageous because of "the consumer's limited investigative resources and his ignorance of evidentiary rules."

That convenience is an advantage accrues to the fact that both the time and place of the arbitration hearing can be (and is typically) negotiated by both parties to the dispute. If the consumer can only meet at night or on a weekend, then the business is requested to select a suitable time, and vice versa. The place of the hearing is typically selected so as to be mutually convenient to both parties. There is no cost involved to either party.

The last major advantage, fairness, arises because of the greater degree of flexibility in the arbitration process that "creates an increased likelihood that 'justice' will be done at the initial stage of the dispute resolution process rather than at a later one" (Ittig, 1976, 76). This has special importance in view of the finality of the arbitration decision. A National Institute of Consumer Justice Study (1972) found that "parties by agreeing to arbitrate, voluntarily submit to the final arbitration, and as a result, voluntary compliance hovers around 90%." It is important to reiterate that arbitrated awards can be contested in most states only on the narrow grounds of bias or partiality on the part of the arbitrator. Finally, since the choice of arbitrator(s) is a joint selection, both parties to the dispute have a better chance of having the case heard by an impartial person.


Although more than a hundred consumer arbitration programs are known to be in operation throughout the United States, most of these should be considered as test projects (majority of them are less than 5 years old) from which hard facts and tentative conclusions about the process of consumer arbitration are only beginning to emerge. Nationally since the BBB program began 6 years ago, arbitration has been offered in almost 23,000 cases of which 2,300 cases (10%) have resulted in an arbitration hearing. Roughly 6,000 cases (26%) have been settled after the consumer and business agreed to arbitrate, but before the hearing. It has been found that the largest complaint categories are home improvements, car repairs and appliances. The average award value has been established between $100 and $200, with a range of $2.98 recently given to a New Mexico woman to $14,000 to a Michigan couple (Wexler, 1977). Based on some preliminary data, experiences of one such program offered by the Better Business Bureau in a large northeastern metropolitan area are summarized here (See Tables 1 - 6). Highlights of the preliminary data (being collected since 1973) indicates:



(a) In each year arbitration was suggested for between 150 and 200 cases. Notably, roughly one-fourth of these cases were actually resolved through arbitration over the four years examined. However, awards issued through arbitration are on the increase from year to year. In fact, the percentage of cases submitted for award in 1976 (38%) has doubled since 1973 (16%). (See Table 1 and Figure 1.)

(b) As is evident from Table 1, the majority of cases suggested for arbitration are not resolved through this mechanism. The major reasons for non-arbitration are presented in Table 2. Notably, in almost one-third of the cases each year, businesses involved decline to participate in arbitration. On the other hand, in almost one-third of the cases in 1976, consumers either declined or withdrew from arbitration. Finally, over the 4 years previewed, non-arbitrated cases resolved by the BBB tribunal via conciliation or mediation, and/or resolved by mediation during the arbitration hearing, averaged about 18%.



(c) Majority of the disputes were related to home remodeling (57.5%) followed by automotive (16.3%), services (15.6%), retail (18.9%), and financial businesses (0.7%).





(d) In 80% of the cases each year, the estimated dollar amount in dispute is less than or equal to $500. Majority of the cases in 1975 and 22% of the cases in 1976 have estimated values in dispute less than $100.

(e) In the majority of the cases each year, the award is made in favor of the consumer (54%). In 1976, about 22% were split awards, 26% in favor of businesses and 52% in favor of consumers.



(f) Across the four years, 1973 - 1976, there is a consistent shift towards lesser duration of time involved from the acceptance of arbitration by both parties to the completion of the award. In 1976, about 60% of the cases were completed within 90 days.



In addition, the data also revealed that 9.30% of the cases in 1973, 0% in 1974, 1.96% in 1975, and 4.54% in 1976 used an expert witness. In 4.65% of the cases in 1973, 0% in 1974, 3.92% in 1975, and 4.76% in 1976, either the consumer or the business or both employed a legal counsel.

These preliminary results present the following picture of this program:

Over the four years examined, of the cases suggested for consumer arbitration 25% were resolved through an arbitration hearing. The majority of the cases initiated for arbitration are not submitted for award through arbitration. The major reason for this is the refusal to participate in the arbitration process by either the business or the consumer. However, in each year the percentage of cases resolved through arbitration is increasing. Of all the cases submitted for award, about 60% of the cases were completed within 90 days. The estimated value in dispute in 80% of the cases is less than or equal to $500. Generally less than 5% of the cases involved a legal counsel (either by the consumer or business or both) or an expert witness. These latter figures strongly support the advantages of the consumer arbitration outlined earlier.


Consumer arbitration appears to have a great potential for becoming a satisfactory dispute-resolving mechanism for both consumers and businessmen. Comparing it with other formal redress mechanisms Lippman (1974) writes:

Although the rights of consumers are relatively well established by federal and state enactments and by a plethora of regulatory and remedial agencies, a distinction must necessarily be drawn between having a right and being able to exercise it promptly. Consumer grievances may, of course, be litigated, but not only is such litigation procedurally impractical, it is also prohibitively expensive. A defective twelve dollar toaster or a damaged garment returned from the dry cleaners is simply not grist for our judicial mills as we know them. And, though the class action has been suggested as an answer to the impracticality of litigating individual claims, it is apparent that this highly technical approach is far more appropriate for establishing precedent than for providing the prompt and complete relief the consumer with an everyday marketplace grievance requires.

One attempted solution has been the creation of small claims courts which eliminates papers, bar or discourage attorneys, limit appealability and frequently hold evening sessions -- an important provision lest the litigant barter a day's earnings for recovery which might not even be its equivalent. However, as a solution to minor consumer problems, small claims courts have been largely ineffective, apparently because few aggrieved consumers are aware of their existence .. (a) basic contention here is that there is a remedial group which neither traditional litigation, administrative agencies, class actions, nor small claims courts fill effectively. Informal, inexpensive, speedy, and localized arbitration projects can fill that gap for consumers. (Lippman, 1974, 235-6)

It should be noted that not all complaints can be submitted to arbitration -- for example: instances of clear-cut legal violations; cases where dollar stakes are exceptionally high; or situations where either party wants the right to appear, or desires to set a legal precedent, or seeks damages beyond the sum in dispute.

Some lawyers and consumer protection experts cite other problems with the arbitration process. Since success of the arbitration process depends upon the "willingness of all parties to a dispute to submit themselves to the process ... and to fulfill whatever demands are made upon them as a result" (Ittig, 1976) the opinion has been voiced that many businesses are reluctant to agree to arbitration or have stalled and delayed in arbitration proceedings. Reasons for unwillingness of business to arbitrate range from the knowledge that the "letter of the law is on their side" if not the spirit of the law to a desire to avoid promoting a redress mechanism that is more accessible to consumers and therefore may increase the future number of claims against them (Ittig, 1976).

Since consumer arbitration is but a quasi-judicial redress mechanism, it lacks the force of law to insure the payment of awards issued by the arbitrator.

A number of other issues need to be examined before arbitration can be stamped as a viable alternative. For example, the cornerstone of the consumer arbitration program is the arbitrator. Since cost is a major consideration in consumer arbitration, the arbitrator will, almost of necessity, be a volunteer. The success of this program, therefore, depends to a large extent on the BBB's ability to recruit volunteer arbitrators. It has been proposed that potential arbitrators will come from all walks of life -- retirees, homemakers, ministers, academicians, and of course lawyers. Questions that need to be investigated are: What type of individuals will make good consumer arbitrators? What type of training programs should be developed to make an ordinary consumer an effective arbitrator (Underhill, 1976)? Will consumer-turned-arbitrator be biased against businesses? Furthermore, although some studies have been conducted (Ittig, 1976) comparing different redress mechanisms, there is a need to empirically evaluate consumer arbitration as compared to other formal redress mechanisms.

Last but not least, the success of this program will depend on its acceptance by consumers and businesses. The data reported in this paper indicate that in almost one-third of the cases initiated the business involved declined to participate in the arbitration and in another one-third (in 1976) of the consumers involved either declined or withdrew from arbitration (Table 1). These figures compiled with the statistics reported earlier from other studies on the low percentage of dissatisfied consumers complaining to BBB's definitely suggest a need for BBB's to bring forth a general awareness of its arbitration program and gain consumers' as well as businesses' confidence as a marketplace neutral. Through the resolution of these issues consumer arbitration may present itself as the dispute resolution mechanism to dissatisfied consumers, businesses, and government.


R. E. Anderson, "Consumer Dissatisfaction: The Effect of Disconfirmed Expectancy on Performance," Journal of Marketing Research, 10 (1973), 38-44.

A. R. Anderson and A. Best, "Consumers Complain - Does Business Respond?" Harvard Business Review, (1977), 104-15.

R. L. Day and E. L. Landon, Jr., "Toward A Theory of Consumer Complaining Behavior," in A. G. Woodside, J. N. Sheth and P. D. Bennett, eds., Consumer and Industrial Buying Behavior (New York: North-Holland, 1977), 425-37.

R. L. Day, and M. Bodur, "Consumer Response to Dissatisfaction with Services and Intangibles," in H. K. Hunt, ed., Advances in Consumer Research, Vol. IV (Chicago: Association for Consumer Research, 1977), 263-72.

R. L. Day, and E. L. Landon, Jr., "Collecting Comprehensive Complaint Data by Survey Research," in B. B. Anderson, ed., Advances in Consumer Research, Vol. III (Chicago: Association for Consumer Research, 1976), 263-8.

S. L. Diamond, S. Ward and R. Faber, "Consumer Problems and Consumerism: Analysis of Calls to A Consumer Hot Line," Journal of Marketing, 40 (1976), 58-62.

F. Elkouri and A. Elkouri, How Arbitration Works (Washington, D. C.: The Bureau of National Affairs, Inc., 1973).

K. Gr°nhaug, "Exploring Consumer Complaining Behavior: A Model and Some Empirical Results," in W. D. Perrault, Jr., ed., Advances in Consumer Research, Vol. IV (Chicago: Association for Consumer Research, 1976), 159-65.

K. B. Ittig, "The Political Economy of Local Consumer Protection: An Empirical Study of Two Models of Consumer Redress," Ph.D. Dissertation, Department of Consumer Economics and Public Policy, Cornell University, 1976.

M. G. Jones and B. B. Boyer, "Improving the Duality of Justice in The Marketplace: The Need for Better Consumer Remedies," The George Washington Law Review, 40 (1972), 357-70.

J. P. Liefeld, F. H. C. Edgecombe and L. White, "Demographic Characteristics of Canadian Consumer Complainers,' Journal of Consumer Affairs, 9 (1975), 15-35.

M. E. Lippman, "Arbitration as an Alternative to Judicial Settlement," Maine Law Review, (1974), 215-41.

A. N. Resnick, "Consumer Arbitration as an Alternative to Judicial Preseizure Replevin Proceedings," William and Mary Law Review, 16 (1974), 268-93.

P. G. Schrag, Cases and Materials on Consumer Protection (St. Paul: West Publishing Co., 1973).

J. N. Sheth and N. J. Mammana, "Recent Failures in Consumer Protection," California Management Review, 16 (1974), 430-45.

Staff Studies Prepared for The National Institute for Consumer Justice on 1. Business Sponsored Mechanisms for Redress, 2. Arbitration (Washington, D. C.: National Institute for Consumer Justice, 1972).

C. I. Underhill, A Manual for Consumer Arbitrators (Buffalo: Better Business Bureau of Western New York, Inc., 1976).

R. H. Warland, R. O. Herrmann and J. Wilits, "Dissatisfied Consumer: Who Gets Upset and Who Takes Action," Journal of Consumer Affairs, 9 (1976), 148-63.

R. A. Westbrook, "A Study in Consumer Dissatisfaction Before Purchase," in W. D. Perreault, Jr., ed., Advances in Consumer Research, Vol. IV (Chicago: Association for Consumer Research, 1976), 142-8.

R. Wexler, "Consumer Arbitration: A Compromising Position,'' Juris Doctor, (1977), 40-2.

S. Wexler, "Practicing Law for Poor People," The Yale Law Journal, 6 (1971), 450-65.

G. Zaltman, R. K. Srivastava and R. Deshpande, "Perceptions of Unfair Marketing Practices: Consumerism Implications,'' in H. K. Hunt, ed., Advances in Consumer Research, Vol. V (Chicago: Association for Consumer Research, 1977), 247-53.



Stephen A. Goodwin, State University of New York at Buffalo
Vijay Mahajan, Ohio State University
Bhal J. Bhatt, State University of New York at Buffalo


NA - Advances in Consumer Research Volume 06 | 1979

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