Words Matter: How to Draft Arbitration Agreements That Hold Up in Court

What employers should know about key developments this week:

Arbitration Agreement Drafting Pitfalls: Vague or imprecise language regarding discovery, confidentiality, neutrality, and mutuality can hand employees a roadmap for challenging—or defeating—your arbitration agreements in court.
AI-Assisted Drafting Risks: Artificial intelligence (AI) tools may generate arbitration agreement language based on existing law but can miss evolving legal arguments in pending cases, making attorney review essential before finalizing any agreement.
Strategic Decision-Making for Arbitration Programs: Employers should clearly identify their primary goals for an arbitration program, familiarize themselves with the chosen forum’s rules, and ensure consistency across all arbitration provisions company-wide.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Jonathan M. Brenner and Victoria Sloan Lin discuss how imprecise drafting can leave arbitration agreements vulnerable to court challenges, why AI-assisted drafting requires careful attorney oversight, and how employers can build a more defensible and strategically sound arbitration program.

Words Matter: How to Draft Arbitration Agreements That Hold Up in Court
Play
May 13, 2026

Transcript

[00:00:03] George Whipple: Welcome to Employment Law This Week. I’m George Whipple. Words matter in arbitration agreements - Particularly now, in the Age of AI, the smallest turn of phrase or omitted clause can leave an otherwise sound agreement vulnerable in court. We saw an example of this recently when the Sixth Circuit denied an employer’s motion to compel arbitration, broadly reading and applying an exclusion clause in the employee’s arbitration agreement. The deciding factor for the court? One word: “involving.” We asked Epstein Becker Green’s Jonathan Brenner how poor agreement construction can open the door to this kind of scrutiny.

[00:00:52] Jonathan Brenner: Not paying careful attention to, for example, to the way an agreement reads regarding the availability of discovery, the neutrality of the arbitration process, confidentiality of the proceedings, and mutuality and scope of the entire agreement can lead to adverse outcomes for enforceability of those agreements, or at least at a minimum, provide incentive or ammunition to challenges to those agreements.

[00:01:20] George Whipple: Jonathan, what is your advice when clients use AI to assist in drafting arbitration agreements?

[00:01:28] Jonathan Brenner: Anything done by artificial intelligence in terms of arbitration agreement preparation or drafting should be checked. Input from counsel should be obtained. Employers should keep in mind that AI might pick up what may currently be out there by way of judicial guidance or existing law. But it may not pick up what arguments could be made or might be currently made in pending cases right now that might be very relevant and meaningful for an arbitration agreement being prepared today.

[00:02:00] George Whipple: Keeping up with recent developments and catching nuances in word choice are areas where AI can be inaccurate. It’s also best practice to keep a human in the loop whenever decisions are being made. With us now is Victoria Sloan Lin. Victoria, how should employers approach decision-making in arbitration agreements?

[00:02:24] Victoria Sloan Lin: Make sure you ask yourself, "What is the primary benefit to my company with respect to an arbitration program?" It may be confidentiality, but there may be other factors that are important to you, such as cost. Also, be sure to familiarize yourself with the rules of the forum you've chosen for your arbitration, particularly when you've incorporated those rules by reference into your arbitration agreement. There may be terms in there that you want to alter in the agreement itself. There is still a lot of flexibility that can be built into an arbitration program, but make sure that the choices you make are right for your company. Also, be sure to read across arbitration provisions if you have them in different agreements to make sure they're consistent.

[00:03:08] George Whipple: Thanks, Victoria and Jonathan. And thank you for watching. We’ll see you next time.

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