Control Over Dispute-System Design and Mandatory Commercial Arbitration

This article argues that mandatory arbitration is not itself the problem. The problem is instead that in some instances, one party to the dispute has exclusive control of the design of the dispute-resolution system. Consequently, research on mandatory arbitration should concentrate on who is structuring it, how they structure it, why this is so and how these choices affect dispute outcomes

Why Suppose - Let\u27s Find Out: A Public Policy Research Program on Dispute Resolution

In this commentary, I suggest that we can get a broader picture of the research agenda to address these policy issues by refining our notions of self-determination. In addition to self-determination over process and outcome in the individual case, we need to start examining who has control over design of the dispute system as a whole. First, this commentary addresses the difference between self-determination at the case level and self-determination in dispute system design and how these two separate dimensions of self-determination can help us distinguish among different uses of mediation and arbitration. Second, using this framework, I attempt to review some of the field research on mediation and relate it to Professor Hensler\u27s essay. This includes work in labor relations that finds disputants rate mediation more highly than arbitration in terms of judgments of procedural justice and work in employment mediation showing that both facilitative and transformative models can provide disputants with a useful alternative to traditional administrative adjudication. Finally, this commentary proposes that the judiciary build data collection into its information systems to facilitate more field research on how different ADR dispute system designs function in a court setting

An Empirical Study of Employment Arbitration: Case Outcomes and Processes

Using data from reports filed by the American Arbitration Association (AAA) pursuant to California Code requirements, this article examines outcomes of employment arbitration. The study analyzes 3,945 arbitration cases, of which 1,213 were decided by an award after a hearing, filed and reaching disposition between January 1, 2003 and December 31, 2007. This includes all the employment arbitration cases administered nationally by the AAA during this time period that derived from employer-promulgated arbitration procedures. Key findings include: (1) the employee win rate amongst the cases was 21.4%, which is lower than employee win rates reported in employment litigation trials; (2) in cases won by employees, the median award amount was $36,500 and the mean was$109,858, both of which are substantially lower than award amounts reported in employment litigation; (3) mean time to disposition in arbitration was 284.4 days for cases that settled and 361.5 days for cases decided after a hearing, which is substantially shorter than times to disposition in litigation; (4) mean arbitration fees were $6,340 per case overall,$11,070 for cases disposed of by an award following a hearing, and in 97 percent of these cases the employer paid 100 percent of the arbitration fees beyond a small filing fee, pursuant to AAA procedures; (5) in 82.4 percent of the cases, the employees involved made less than $100,000 per year; and (6) the mean amount claimed was$844,814 and 75 percent of all claims were greater than $36,000. The study also analyzes whether there is a repeat player effect in employer arbitration. The results provide strong evidence of a repeat employer effect in which employee win rates and award amounts are significantly lower where the employer is involved in multiple arbitration cases, which could be explained by various advantages accruing to larger organizations with greater resources and expertise in dispute resolution procedures. The results also indicate the existence of a significant repeat employer-arbitrator pairing effect in which employees on average have lower win rates and receive smaller damage awards where the same arbitrator is involved in more than one case with the same employer, a finding supporting some of the fairness criticisms directed at mandatory employment arbitration

Do it Right or Not at All: A Longitudinal Evaluation of a Conflict Managment System Implementation

We analyzed an eight-year multi-source longitudinal data set that followed a healthcare system in the Eastern United States as it implemented a major conflict management initiative to encourage line managers to consistently perform Personal Management Interviews (or PMIs) with their employees. PMIs are interviews held between two individuals, designed to prevent or quickly resolve interpersonal problems before they escalate to formal grievances. This initiative provided us a unique opportunity to empirically test key predictions of Integrated Conflict Management System (or ICMS) theory. Analyzing survey and personnel file data from 5,449 individuals from 2003 to 2010, we found that employees whose managers provided high-quality interviews perceived significantly higher participative work climates and had lower turnover rates. However, retention was worse when managers provided poor-quality interviews than when they conducted no interviews at all. Together these findings highlight the critical role that line mangers play in the success of conflict management systems

The Other 20 Cents Isn’t Worth It: The Inadequacy of Title VII’s Anti-Retaliation Framework

This Article examines the framework for resolving Title VII retaliation disputes through the lens of gender pay disparity and proposes that the current framework is inadequate. The Article begins by illustrating the issue and the impact of retaliatory conduct in the workplace through the stories of two female workers. It also explains the Title VII retaliation standard and explores the process for filing and pursuing an anti-retaliation claim under this framework. Ultimately, the current framework is inadequate for two reasons. First, it does little to discourage retaliatory conduct by employers or co-workers because what amounts to “retaliation” under the law is under-inclusive and difficult to prove. Second, the employment relationship is among the most important in American society, but instead of seeking to salvage it, the current litigation-driven anti-retaliation framework destroys it. Consequently, the Article proposes an alternative dispute resolution method for solving retaliation disputes and provides examples from the transformative mediation and ombudsman models

Transforming New Zealand Employment Relations: At the Intersection of Institutional Dispute Resolution and Workplace Conflict Management

In New Zealand, the contemporary shift from highly regulated, collectivist employment rights to individual employment relationships included statutory direction to mediation. Good faith negotiation in the workplace and state provision of mediation were to be the primary mechanisms for resolution of ‘employment relationship problems’ (ERP). This paper investigates the intersection between workplace conflict management and institutional provision of mediation. We investigated ERP resolution by drawing on empirical evidence from 38 narrative interviews where participants recounted experiences of employment relationship problem (ERP) resolution. We analysed 243 ERP by comparing settlements to end employment relationships with resolution of ERP where relationships endured. We sought to understand why some ERP remained unresolved and/or escalated. We found that collaborative reflective sense-making had a positive impact on early workplace problem resolution while investigation and confidential settlement negotiations risked injustice. We present, therefore, some suggestions for embedding collaborative conflict management in the workplace

Do the Haves Come Out Ahead in Alternative Justice Systems? Repeat Players in ADR

Marc Galanter\u27s essay, Why the Haves Come out Ahead: Speculations on the Limits of Legal Change (Why the Haves Come out Ahead), published twenty-five years ago, set an important agenda for those who care about the distributive effects of legal processes, including those of us who have been engaged in jurisprudential, intellectual, and empirical debates about the relative advantages and disadvantages of alternative and conventional legal procedures. As a document of legal intellectual history, this Article was formed in the crucible of the Legal Mobilization and Modernization program at Yale Law School that spawned so many law and . . . studies, including legal pluralism, law and society, critical legal studies, and in its own way, even law and economics studies. A seminal work in the socio-legal studies canon, Galanter\u27s article demonstrates the complex patterns of how law and legal institutions actually work, beyond descriptions of legal doctrines and assumed efficacy and penetration of law. In some senses, it is a continuation of legal realism, reminding us of the importance of studying the legal institutions in which the law is embedded and suggesting, at its end, how we might reform or adjust those institutions to produce optimal social change (in this case, redistribution of resources and delivery of justice)