Resolving Workplace Disputes in the United States: The Growth of Alternative Dispute Resolution in Employment Relations

[Excerpt] For more than a decade a quiet revolution has been occurring m the American system of justice. There has been a dramatic growth in the use of alternative dispute resolution (ADR) to resolve disputes that might otherwise be handled through litigation. We define ADR as the use of any form of mediation or arbitration as a substitute for the public judicial or administrative process available to resolve a dispute (Lipsky and Seeber, 1998A}. In the United States mediation, arbitration, and their variants ordinarily are private processes in which the disputants themselves select, hire, and pay the third-party neutral who resolves, or attempts to resolve, their dispute

Dispute Resolution in the Changing Workplace

For the past seven years, the authors of this paper have been conducting research on the use of Alternative Dispute Resolution (ADR) (particularly in employment disputes) by major U.S. corporations (Lipsky and Seeber 1998a, 1998b, 2000). In our research we discovered that an increasing number of American corporations are moving beyond ADR to the adoption of so-called integrated conflict management systems (Lipsky and Seeber 1998a; Gosline et.al. 2001). Although considerable research on the operation of various ADR procedures exists, very little has been done on the formation of conflict management strategies, including the use of conflict management systems (Ury et al. 1988; Costantino and Merchant 1996; Stitt 1998; Colvin 1999). In this paper we examine: a) the concept of an integrated conflict management system, b) the conflict management strategies used by American corporations, and finally c) the factors that account for the evolution of corporate conflict management strategies from traditional approaches (including heavy dependence on litigation) to the widespread adoption of various ADR techniques and finally on to the adoption of full-blown conflict management systems by a vanguard of U.S. organizations. In our discussion we draw heavily on interviews we conducted with top managers and corporate lawyers in more than fifty corporations across the United States

The Social Contract and Dispute Resolution: The Transformation of the Social Contract in the United States Workplace and the Emergence of New Strategies of Dispute Resolution

In recent years, a significant amount of public and academic attention has been devoted to the unravelling of the so-called \u27New Deal\u27 social contract and the emergence of a new social contract between workers and employers in the United States of America (US). In our paper, we will identify the forces of change that undermined the New Deal social contract during the post-World War II era and led to the reformulation of the workplace social contract in the US. It is our thesis that the transformation of the workplace social contract in the US significantly affected the resolution of employment disputes, giving rise to alternative dispute resolution (ADR) and other new approaches to conflict management. After briefly describing the origins of the New Deal social contract, we will assess the alignment of forces that resulted in the reformulation of the social contract in the 1990s. This new social contract has had historic consequences for most dimensions of the employment relationship, including job security, methods of pay, unionisation, and supervision, but its effects on workplace dispute resolution are especially noteworthy

The Appropriate Resolution of Corporate Disputes: A Report on the Growing Use of ADR by U.S. Corporations

A quick scan of the business and legal press reveals that, compared with a few years ago, many more disputes are being resolved through negotiation, mediation, and arbitration. The change is an incremental one, on the upper end driven by costly, difficult cases involving business risks that have called for the innovative handling of dispute resolution processes, and on the everyday level driven by the need for lower-cost, streamlined ways to handle growing numbers of ordinary disputes. Policy makers at all levels of government have encouraged this trend. Accompanying this public policy movement, increasing numbers of law firms and corporate legal departments are establishing alternative dispute resolution (ADR) practice sections, acquiring expertise or hiring experts in dispute resolution. Many corporations are encouraging the use of ADR not only where it has traditionally been used but also to solve an ever-widening range of conflicts between the corporation and other businesses, individuals, and government agencies. In each of these relationships, it appears that the overwhelming costs of litigation have pushed corporations toward increasing their use of ADR processes. This growing trend and the widespread need for information about appropriate means of resolving corporate disputes motivated us to conduct the survey reported on here

ILR Impact Brief - Employment Arbitration: Emergence of a New Profession

The ILR Impact Brief series highlights the research and project based work conducted by ILR faculty that is relevant to workplace issues and public policy. Brief #1 highlights the authors\u27 research on employment arbitration, including a survey of the National Academy of Arbitrators

The Ascendancy of Employment Arbitrators in US Employment Relations: A New Actor in the American System?

In this paper, we survey the underpinnings of the trend towards employment arbitration in the United States, and its implications for the broader industrial relations system. Specifically, we address the question of whether or not employment arbitrators have been substituted for collective bargaining by the government to an extent that warrants their inclusion as an actor in the industrial relations system. We review developments in workplace dispute resolution in the United States, the literature that attempts to explain these developments and posit an assessment of the stability of employment arbitration, and employment arbitrators, as a central feature of the US industrial relations system

The Arbitration Profession in Transition: A Survey of the National Academy of Arbitrators

[From the Foreward]: That the experience, talents, and integrity of the members of the National Academy of Arbitrators are called on to resolve disputes beyond collective bargaining is not surprising. But The Arbitration Profession in Transition shows that this process is far more widespread, and is accelerating, beyond what most of us had speculated. The study provides the baseline for the new century as to the role of Academy members in the expanding use of ADR in employment and in conflicts concerning statutory rights. It is also a remarkable census of who the Academy is, notable for the extraordinarily high participation and cooperation of those studied. It has been compiled with dedication, care, and skill. It is more than a snapshot of a profession; it is an image worthy of contemplation as the Academy, and the users of arbitration and mediation, continue their quest for fairness and equity in the workplace. John Kagel, President –elect, National Academy of Arbitrators, June 1, 2000

An Uncertain Destination: On the Development of Conflict Management Systems in U.S. Corporations

[Excerpt] Our survey and field research have led us to some tentative conclusions that do not conform to the conventional wisdom of our field. From its inception, ADR has been controversial. On the one hand, ADR has been embraced by a coterie of champions who have always believed that its advantages over litigation were so obvious and compelling it would only be a matter of time before ADR was adopted universally. These champions have also been missionaries, proselytizing their faith in all quarters and making numerous converts. Like all true believers, ADR champions cannot understand why others have not yet gotten the faith. On the other hand, there has always been a group of ADR opponents who believe ADR undercuts our system of justice and must be resisted. ADR champions believe in the inevitability of ADR, while ADR opponents believe the movement to ADR can be stopped and even reversed. On balance, we believe in ADR\u27s merits and share many of its champions\u27 convictions. Our research — which is based on the analytical model we present in this paper — suggests, however, that there is nothing inevitable about the ultimate triumph of ADR

The Arbitration Profession in Transition: Final Report to the National Academy of Arbitrators

[Excerpt] In recent years there has been a dramatic increase in the arbitration and mediation of employment disputes outside the collective bargaining context. This increase has been part of a larger shift from reliance on litigation and enforcement agency resolution of disputes to the use of alternative dispute resolution (ADR), a trend particularly evident in the employment field. Over the course of several decades employees have gained a long list of rights and protections included in a variety of laws, ranging from anti-discrimination statutes to pension safeguards to statutory attempts to guarantee safer and healthier workplaces. The growing use of arbitration, mediation, and related techniques to resolve statutory claims arising in employment relations is in part the consequence of the high costs and long delays associated with the use of administrative agencies and the court system to resolve disputes. The unpredictability of jury awards has also prompted employers and employees to opt for ADR. The growing use of ADR in employment disputes has occurred both inside and outside collective bargaining. In some union workplaces, the parties attempt to resolve statutory claims using the grievance and arbitration procedures in the collective bargaining agreement. In others, many, if not most, statutory claims are handled outside the collective bargaining arena, with employees pursuing their claims through the normal channels of agency and judicial resolution. In a minority but growing number of union-management relationships, the parties have created procedures for resolving statutory claims that are separate or “sheltered” from the collective bargaining agreement (Dunlop and Zack, 1997, particularly pp. 53–72; see also Zack, 1999, pp. 67–94). The growing use of arbitration and mediation to resolve employment disputes has been especially noteworthy in the nonunion sector. In the United States, as most people know, the proportion of the workforce that is unionized has been steadily declining for over forty years and currently stands at about 14 percent. Although the membership in the Canadian labor movement has not suffered as steep a decline, a similar trend is apparent there. As in organized workplaces, the growth of employment ADR in the nonunion sector is one consequence of employers’ attempts to avoid the high costs and long delays of the judicial and administrative routes. Of course, some nonunion employers are also motivated by a desire to provide their employees with fair and equitable dispute resolution procedures (Bingham and Chachere, 1999, pp. 95–135)

The Arbitration Profession in Transition: Preliminary Results From a Survey of the National Academy of Arbitrators

[Excerpt} In recent years, there has been a dramatic increase in the arbitration and mediation of employment-related disputes. This increase has been part of a larger shift from reliance on litigation and agency resolution of disputes to the use of alternative dispute resolution (ADR), a trend particularly evident in the employment field. Over the course of several decades employees have been granted a long list of rights and protections included in a variety of laws, ranging from antidiscrimination statutes to pension safeguards to statutory attempts to guarantee safer and healthier workplaces. The growing use of arbitration, mediation, and related techniques to resolve statutory claims arising in employment relations is largely the consequence of the high costs and long delays associated with the use of administrative agencies and the court system to resolve disputes arising under these various statutes. The growing use of ADR in employment disputes has occurred both inside and outside collective bargaining. In some union workplaces, the parties attempt to resolve statutory claims using the grievance and arbitration procedures in their collective bargaining agreements. In other union workplaces, many, if not most, statutory claims are handled outside the collective bargaining arena. Employees in many such organizations pursue their statutory claims through the normal channels of agency and judicial resolution. In a minority but growing number of union-management relationships, the parties have created procedures for resolving statutory claims that are separate or sheltered from the collective bargaining agreement. The growing use of arbitration and mediation to resolve employment disputes has been especially noteworthy in the nonunion sector. In the United States, as most people know, the proportion of the work force that is unionized has been steadily declining for over 40 years and currently stands at about 14 percent. Although the Canadian labor movement has not suffered as steep a decline as in the United States, a similar trend is apparent there. The growth of employment ADR in the nonunion sector is largely the consequence of employer attempts to avoid the high costs and long delays associated with the use of judicial and administrative means to resolve disputes. Of course, some nonunion employers are also motivated by a desire to provide their employees with fair and equitable dispute resolution procedures