Mass Arbitration Readiness Checklist: A Practical Checklist

Document type: Checklist Practice area: Litigation — Arbitration Jurisdiction: United States (federal) Last reviewed: 5 September 2026

Two halves. Parts 1 through 6 are preparation and should be worked when nothing is pending. Parts 7 through 11 are the response, and they run on a clock.

Part 1 — The threshold question

Estimate realistic class action exposure for the company's largest systemic practices.
Estimate realistic mass arbitration exposure for the same practices.
Identify whether any route to global peace exists through arbitration. There is no analogue to a court-approved class release.
Weigh confidentiality and precedent avoidance against the fee structure the company funds.
Decide, deliberately, whether to keep the arbitration clause.
Document the decision and the reasoning, and schedule an annual revisit.

Part 2 — Clause audit: provisions that have been enforced

Informal dispute resolution as a condition precedent:

Individualized written notice required, with name, contact information, account identifier, description of the dispute, and specific relief sought.
Signed or verified by the individual claimant, not counsel alone.
A negotiation period of 30–60 days.
A telephone or video conference on request, at a mutually convenient time.
Tolling of all limitations periods during the process.
Stated expressly as a condition precedent to arbitration.
Mutual — the company follows the same process before initiating.

Batching:

A defined trigger (e.g., 25+ similar demands by coordinated counsel in 90 days).
Batch size stated.
Batches initiated at defined intervals, not at the company's discretion.
Every claim is adjudicated — no indefinite stay.
Limitations tolled for demands awaiting a batch.
Assignment by an objective rule (filing order), not by selection.

Bellwethers:

Selection split between the parties.
A global mediation step after the bellwether awards.
A defined path forward if mediation fails.
No preclusive effect on non-participating claimants.

Supporting provisions:

Small claims court carve-out, available to either party.
Meaningful opt-out — 30 days, simple mechanism, honored in practice, records kept.
Mutual fee-shifting for frivolous or improper filings, on a standard comparable to Rule 11.
Claimant verification requirement: authorization statement plus account identifier.
Class waiver with a severance clause sending invalidated claims to court, not to arbitration.
FAA fallback to a named state arbitration act if the FAA is held inapplicable.
Consumer fairness terms: company pays arbitrator fees above a court filing fee; full statutory remedies; no shortened limitations period; convenient venue or video; reasonable discovery; written reasoned award; no gag on discussing underlying facts.
Institution selected for a tested mass procedure with individual adjudication and a claimant role in arbitrator selection.

Part 3 — Clause audit: provisions to remove

Indefinite stays of any claim group.
Bellwether results binding absent claimants.
Company discretion over batch timing.
Costs imposed on claimants exceeding a court filing fee — see Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000).
Any provision that makes arbitration practically unavailable rather than orderly.
Reliance on a delegation provision to insulate the mass procedure from review; courts have held the delegation fails with the protocol.
Obligations the company cannot actually perform at scale.

Part 4 — Capability: claimant matching

A documented process that takes a claimant list and returns, per claimant: account existence, creation date, charge history, terms version accepted and date, interface version seen, and prior support contacts.
Identity resolution across email, phone, device, and account identifiers.
Historical billing records queryable at the transaction level.
Legacy and acquired systems included — this is the most common gap.
A named owner who can run it on two days' notice, and a backup.
Tested annually with a synthetic list of at least 5,000 rows.
A declaration template explaining the methodology, ready to file.

Part 5 — Capability: formation evidence

For every version of the terms:

Version identifier and effective date range.
Full text, in an immutable store.
Renderings of every acceptance screen as it appeared, from the code repository or design system — mobile and desktop.
Presentation facts: link position relative to the action button, font size and color, whether a checkbox was required, button label.
Acceptance logging schema: user id, timestamp with time zone, IP, terms version, surface, event type.
Retention and backup policy.
For each amendment: notice text, delivery channel, send date, recipient set, acceptance mechanism.
A named declarant able to testify to all of the above, plus a backup.
Reviewed at every terms change and annually regardless.

Part 6 — Capability: informal resolution and triage

Informal resolution:

An intake channel for IDR notices, separate from general support.
A triage rubric by product, period, and issue.
Staff trained to conduct a settlement conversation.
Settlement authority delegated in advance, in tiers.
A log recording every notice, contact attempt, conference held, and outcome.
Capacity modeled for a volume event, not for ordinary volume.

Claims triage:

A defined segmentation: Tier 1 verified and meritorious; Tier 2 verified and defensible; Tier 3 weak (no charge, out of period); Tier 4 unmatched, duplicate, or unverified.
Product and operations staff who can say which defect was live when.
Interface version history mapped to date ranges and jurisdictions.
A rule that Tier 1 claims are paid promptly.

Part 7 — Response: days 1 through 5

Obtain the claimant list in machine-readable form.
Issue a litigation hold covering interface versions, billing records, support tickets, and internal communications — broad enough to cover a class action if the clause is later held unenforceable as to any group.
Notify insurers; check the notice provisions and comply exactly.
Stand up the team: legal, data, product, support, finance leads.
Calendar every institutional deadline.
Brief management with a range, not a number.

Part 8 — Response: days 5 through 30

Run the claimant match; produce the four-tier segmentation.
Map each claimant to the terms version in effect on their acceptance date.
Note that different claimants may be governed by different clause versions; handle them separately.
Assess condition-precedent compliance by claimants.
Assess the company's own performance of any IDR obligation, honestly.
Assemble the formation-evidence package for each relevant version.
Set a preliminary reserve with stated assumptions.

Part 9 — Response: engaging the process arbitrator

Appear promptly under the applicable mass procedure.
Bring data: a declaration explaining the matching methodology and the counts.
Concede the properly filed, verified claims — credibility on the rest depends on it.
Raise: unverified filings, duplicates, condition-precedent noncompliance, fee allocation, sequencing.
Seek stays for compliance, not dismissals.
Propose a workable batching schedule consistent with your own clause.
Do not argue that mass arbitration is impermissible.
Do not challenge the enforceability of your own clause.
Write every submission as though a district judge will read it, because one will.

Part 10 — Response: resolution

Make prompt, fair offers on Tier 1.
Negotiate the process for the rest: batch schedule, bellwether selection, mediation timing.
Prepare bellwether cases properly; a bad loss reprices everything.
Track resolution rates; update the reserve monthly.
Structure settlements claim by claim — no class release is available.
Confirm each settlement includes a release and, where appropriate, a confidentiality term consistent with the clause.
Identify the underlying product defect and get it fixed.

Part 11 — Employment and gig-worker variant

Claim values are larger; model merits exposure, not just fee exposure.
Confirm the 9 U.S.C. § 1 analysis for anyone who moves goods or people; include a state-law fallback.
Address representative claims (PAGA and analogues) expressly; see Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022) and the state-law developments after it.
Account for the Ending Forced Arbitration Act carve-out for sexual assault and harassment claims, which a court decides notwithstanding any delegation clause.
Confirm the IDR provision is performable by a worker without counsel.
Confirm fee allocation meets the applicable state standard.
Size batches for larger individual claims.
Build the claimant match against payroll and scheduling data, not billing data.

Part 12 — Governance

Annual review:

Is the arbitration clause still the right choice?
Have the institutional rules changed?
Have the year's decisions required a clause change?
Is the formation-evidence package current for every live terms version?
When was the claimant match last tested?
What does the IDR log show for the last twelve months?
What is the reserve, and what supports it?

Biennial tabletop:

Synthetic list of 5,000 demands, including duplicates, non-customers, and legacy-system users.
Run the match; time it.
Map terms versions; produce interface renderings.
Assess conditions precedent both ways.
Draft the first two pages of a process arbitrator submission.
Segment and set a reserve range.
List every gap; assign an owner and a date to each.