by Michael Fox
Unlike the district court which jumped to a conclusion about the impact of requiring a plaintiff to split the costs of arbitration, the 8th Circuit requires proof that it would deprive a potential litigant of his right to have his claim heard. Even on remand, if such evidence should be forthcoming, the Court finds that the offending clause should be severed and the case sent to arbitration. Faber v. Menard, Inc. (8th Cir. 5/21/04) [pdf]. Completing what can only be called a very pro-arbitration decision, the Court found that the provision that each party should bear their own attorneys' fees should first be heard by the arbitrator, to determine "whether Faber has in fact waived his statutory right to recover attorneys’ fees or whether an appropriate remedy may still include them."