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In order to maintain a positive and supportive environment within sororities, as well as manage the risk of escalation during disagreements, it is essential to establish effective mechanisms for dispute resolution among sorority members.

As the cost and administrative burden of litigation continues to grow, MJ Sorority supports the inclusion of binding arbitration clauses in membership agreements as a fair and efficient form of dispute resolution. Binding arbitration clauses are standard practice in many industries today, and if executed thoughtfully, can benefit both the organization and its members.

What is arbitration?

Arbitration is a formal method of dispute resolution that provides an alternative to traditional litigation. Overseen by a neutral arbitrator or arbitrators, parties to a dispute present evidence, make arguments, and are bound by the arbitrator’s decision, much like the formal litigation process. However, there are some important distinctions between arbitration and litigation. Arbitration is a private process and typically much more efficient. Additionally, parties to an arbitration choose the arbitrator presiding together, or in the case of a tribunal, each choose an arbitrator, who then in conjunction with one another, choose the third arbitrator on the panel.

How do arbitration clauses become relevant during a dispute?

Typically, arbitration clauses are leaned upon when one of the parties to a dispute changes its mind about using the arbitration process and wants to “have their day in court.” The court then looks to the original agreement to determine the validity of the arbitration clause and if the language of the arbitration agreement passes muster, the court will hold the parties to their agreement and send the dispute to a neutral, third-party arbitrator.

This is why arbitration clauses should be presented as part of an organization’s membership agreement, ensuring that there is a clear written record from the moment a member joins the organization.

What are the key components of an arbitration clause?

To ensure that arbitration clauses included in membership agreements are enforceable, a few key components should be present:

  • Specific language—The agreement should clearly outline what types of disputes will go to arbitration. The agreement must clearly state that signing the agreement means that both parties waive their right to recourse in court.
  • Meaningful choice—Courts want to ensure that all parties to an agreement have equal bargaining power. New members should be given meaningful opportunity to study and ask questions about their membership agreement, including the arbitration clause.
  • Notice/Acceptance—When implementing a dispute resolution program using arbitration, the contracting sorority needs to have a written record of putting their existing members on notice of the program, if applicable. Where possible, a sorority should collect assent to an arbitration program from existing members via signature. Inclusion of an arbitration clause in the membership agreement for new members satisfies these concerns.
  • Confidentiality—While arbitration takes place behind closed-doors, meaning that the proceedings are not open to the public, there must be an additional clear agreement to maintain confidentiality. It’s recommended that membership related offenses be handled internally to maintain the privacy of members and foster trust and openness in the dispute resolution process. Including confidentiality language in the arbitration agreement will bind parties to the to keep the process confidential.

Keeping these components in mind while drafting arbitration clauses will bolster their validity and ensure all parties have clear expectations of the arbitration process.

What are the challenges of binding arbitration? What concerns does MJ Sorority have with arbitration clauses?

When arbitration clauses first came into fashion in the early ‘00s, courts were mostly deferential to such clauses and did not entertain challenges to their validity. In the last 15 years, courts have become much more wary of arbitration clauses, in some cases, finding them unconscionable, meaning that they are held invalid.

Claims of unconscionability, while hard to win, are important to consider when drafting and distributing membership agreements with arbitration clauses.

What is the benefit of arbitration over mediation or traditional litigation?

The arbitration process is private, helping parties avoid potentially lengthy, public, and expensive litigation. Furthermore, unlike in mediation, the arbitration process authorizes a neutral arbitrator to make a decision about the dispute, including the arbitration award, which is then only confirmed by a court. Typically, the arbitration agreement will include language that waives the parties’ right to appeal on substantive grounds in a court of law, limiting costs for all involved.

What is MJ Sorority’s Opinion on arbitration for dispute resolution?

While organizations should examine arbitration laws in each state of chapter operation, binding arbitration clauses are generally recommended to be part of membership agreements. If used, these clauses should be carefully worded to be specific and reasonable to both the contracting member and the organization. Organizations must demonstrate that there is equal bargaining power between the contracting parties and that the language used is specific and unambiguous. Organizations should also put existing members that have not signed an updated membership agreement on notice of an arbitration program’s implementation and collect assent via signature where possible.

Further Information:

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The monthly MJ Sorority Newsletter – This issue covers background checks, event planning resources, rising food costs, summer to do lists & more.

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For more information on preventing phishing scams, review this resource from Chubb, the cyber security carrier for MJ Sorority clients.

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MJ Sorority’s monthly newsletter. This issue covers boiler inspections, increasing construction costs, spring chapter house inspection recommendations, and more.

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March 2022: Topics include property claims trends, spring weather resources, FAQ on hiring contractors, 2022 MJ Housing Forum recordings and more!

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January 2022: Topics include winter weather reminders, Covid-19 updates, accounting best practices, renting your chapter house for events, and insurance limits.

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Event Planning: Special Event Policies – This episode contains a discussion with Ruth and Allison about special event policies as part of our ongoing series on event planning. They dive into what they are, when you need them, what to look for, and more.

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Unofficial Houses: What, Why, & How – In this episode, Allison and Sara discuss what we call “unofficial houses.”

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October 2021: Topics include Leak Protection, water damage, COVID-19, & wellness rules overview.

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As everyone over the age of twelve is now eligible for vaccines, more questions arise for employers. MJ has developed a  resource full of frequently asked questions about the Covid vaccines. In addition, be sure to check out the Fisher Phillips vaccine resource center for employers, including their sample vaccination mandate template.

The EEOC COVID-19 website will provide some initial questions and answers to those areas of risk for your organization as an employer. As a private business, from a legal perspective, there is little preventing you from imposing a vaccination requirement on your employees. You will need to balance that against operational risks associated with a mandatory program. Generally, an employer can implement a mandatory vaccination program. This ability by the employer, however, is subject to reasonable accommodation obligations under federal, state, and local laws for those with disabilities who request a medical accommodation or those who have a religious belief against vaccinations. You do have greater latitude to consider when managing this exposure, but there still remains some regulatory and legislative boundaries that you need to review whether it be EEOC and/or OSHA on this subject. The two notable exceptions to this mandate are when an employee can attest to having a medical condition that could cause a real danger of serious illness or death in the event of inoculation and when the employee maintains privately held religious beliefs that are inconsistent with taking vaccines.

Setting aside the question of legality, each business will carefully need to consider all aspects of this matter and calculate all of the inherent risks. Now that vaccines are widely available for everyone over the age of twelve and with the full FDA approval of the Pfizer vaccine, it makes it easier for employers to require vaccination. That being said, each employer must do what it believes is best for its operation. As a sorority headquarters and also sorority chapter house operations, you need to consider not only the health and safety of the employees operating on your property, but also the resident collegiate members. Both the EEOC and the Center for Disease Control have acknowledged the inherent risk of having a COVID-19 infected person in the workplace posing a significant risk of substantial harm to others.

Employers should begin to evaluate their specific workplace situation and determine what is the correct course of action for them by considering the following:

  • Employers should ask if a mandatory vaccination program is necessary to their industry, workforce or workplace facilities such as chapter houses? 
  • If the employer deems a mandatory vaccination program necessary, is it organization-wide or are there restrictions based on being a remote worker, exposure to chapter members across the country, etc.?
  • If a mandatory program is implemented, employers should evaluate their accommodation (exception) processes to be able to quickly react to all requests that may arise by employees.

Whatever the case may be, it is recommended that, as an employer, you provide proper education relating to Covid-19 protocol, vaccinations, in general, and the rights of employees to refuse a vaccine. All the while, continuing to practice safe exposure control to prevent the spread of the virus, remove barriers which might pressure reporting to work when sick and make it easy for employees to receive inoculations to fend off COVID-19, even if not mandated.

Employees should have one individual or department who is responsible and accountable for compliance around a mandatory vaccine program and its processes. This is especially critical if the employment at the chapter houses is managed locally. This is a complex issue to effectively navigate and the local management may not be as familiar with all of the inherent risks of this matter.

Given the fast-evolving nature of the question, it is crucial for employers to monitor new laws and guidance from federal and state authorities. Employers should weigh the legal exposure and other risks associated with any mandatory vaccination program, and assess whether the alternative of voluntary vaccination may be a better option based on the nature and needs of your business.

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