Category Archives: Dispute Resolution

Mediation, Arbitration, and Alternative Dispute Resolution (ADR)

Source: Carrie Menkel-Meadow, International Encyclopedia of the Social and Behavioral Sciences, Elsevier Ltd. 2015

From the abstract:
This entry for the International Encyclopedia of the Social & Behavioral Sciences, 2nd ed. defines and describes modern processes of dispute resolution beyond court adjudication, including negotiation, mediation, arbitration and a variety of new hybrid forms of dispute resolution (e.g. med-arb, summary jury trial, public policy consensus building) that are sued in both public and private disputes. The article reviews the history and theory behind these processes, outlining quantitative and qualitative reasons for their use and then reviews a variety of controversies association with their use, including the privatization of dispute resolution, difficulty in evaluating their effectiveness and power imbalances in their use. The aspirational qualities of process pluralism are contrasted to the realities of their use and cooptation in some contexts, such as when powerful private and public parties dictate the form that dispute resolution takes, without party consent.

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Source: Judith Resnik, Yale Law School, Public Law Research Paper No. 543, April 30, 2015

From the abstract:
Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales — that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to “vindicate” public rights.

The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so — rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public — endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.

Use Of Collective Bargaining History in Arbitration

Source: Tom Barnes, Dispute Resolution Journal, Volume 68, No. 4, 2013
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It is somewhat ironic that while all collective bargaining agreements (“CBAs”) have their genesis in bargaining history, the origins and evolution of a collective bargaining provision is not often offered evidence in an arbitration hearing. As an advocate for nearly 40 years, I seldom offered such testimony. That may emanate from the fact that 70% of my cases were discharge or discipline matters under just cause provisions and bargaining history is usually of little significance. This may be due to a variety of other factors, viz: the authors are not available to testify; the origins are forgotten by succeeding negotiators on both sides of the table; bargaining notes, much less minutes, were not kept or are indiscernible . . . the sum of which is that the collective history is lost. With that lost history, any chance of demonstrating the real intent of the parties or disabusing an arbitrator of what appears to be plain meaning of a CBA provision evaporates as well. This is not a law review article. These are observations from four decades of negotiating labor agreements for both management and labor. That was in the setting of where the “sausage was being made” and thus these are reflections not from the flight deck but the bilge deck. In that connection, fine points of evidence such as relevancy, admissibility, hearsay, attorney-client and work product privileges, and parol evidence, all relevant in the admission of bargaining history, are not the focus. Rather, the practical aspects of how CBAs are negotiated and how arbitrators may consider such recorded labor history, is the focal point.

The Development of Employment Rights and the Management of Workplace Conflict

Source: Cynthia L. Estlund, New York University School of Law, Public Law Research Paper No. 13-83, December 12, 2013

From the abstract:
Conflict is endemic in workplace organizations. Some workplace conflict may coalesce into union organizing and collective bargaining; or it may ripen into litigation. At first blush, collective bargaining and litigation seem to represent nearly opposite approaches to workplace conflict. Yet they have more in common than first meets the eye. Both collective bargaining and litigation are fearsome to employers, and have generated a thriving industry of avoidance – “union avoidance,” “litigation avoidance” – to keep them at bay. Both serve simultaneously as a mechanism of conflict resolution and as a catalyst of conflict. The iconic statutes that launched both the collective bargaining system and modern employment litigation – the NLRA of 1935 and the Civil Rights Act of 1964 – were born amidst intense social conflict; and both aimed in part to quell that conflict by channeling it into more peaceful channels – specifically, by empowering employees and compelling employers to deal with them fairly through non-violent though still costly adversarial forms of conflict. For workplace conflict is not simply a social evil to be avoided; it is also a by-product of, and a means for, the pursuit of justice. Yet both the collective bargaining system and statutory employment rights are supposed to induce organizational actors to construct a more just state of affairs mainly through the threat of costly conflict, not its frequent occurrence.

This chapter’s exploration of parallels between litigation and collective bargaining as modes of workplace dispute resolution lays the foundation for advocating one more parallel: Employment rights, litigation, and regulation could follow a path pioneered by the labor movement in leveraging workplace disputes into pressure for more participatory structures of workplace governance. It argues that the forms of governance – regulated self-regulation and internal dispute resolution – that are beginning to take shape under the shadow of litigation and regulation could and should be molded into a system of “co-regulation” that would secure for workers some of what collective bargaining was meant to deliver: a form of participation through collective representation in the resolution of workplace disputes and in workplace governance.

Workplace Dispute Resolution and Quality of Work Life: The Worker Co-Operative Alternative

Source: Elizabeth A. Hoffmann, International Journal of Self Help and Self Care, Vol. 6 no. 2, 2012
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From the abstract:
This article provides a concise comparison of matched pairs of conventional and worker-owned co-operative organizations operating in three industries—coal mining, taxicab driving, and organic food distribution. Like self-help groups, worker co-operatives try to minimize hierarchy in order to maximize the power and dignity of the workers involved. Specifically, this article examines workplace dispute resolution, a key factor in the quality of work life, and the alternative of more egalitarian, self-managed workplaces. While we think of such workplaces as being a benefit of certain professional firms, all co-operative workplaces studied here involved mostly positions that required no college education. Nevertheless, members of these co-operatives worked together to create economically stable workplaces with the same or better wages than that of comparable organizations, yet also with a greater quality of work life.

Interest Arbitration as Alternative Dispute Resolution: The History from 1919 to 2011

Source: Joe Slater, Ohio State Journal of Dispute Resolution, Vol. 28 no. 2, 2013

From the abstract:
This paper comes from a February 2012 Symposium, “The Role of ADR Mechanisms in Public Sector Labor Disputes: What Is at Stake, Where We Can Improve & How We Can Learn from the Private Sector.” It discusses the history of an important form of alternative dispute resolution: the use of what is called “interest arbitration” to resolve bargaining impasses in public-sector labor relations. This process is used in many states as an alternative to strikes. While interest arbitration has been a crucial part of public-sector labor law and labor relations for decades, it has come under increased scrutiny recently. Indeed, in the wave of laws passed in 2011 restricting the rights of public-sector unions to bargain collectively, interest arbitration was repeatedly attacked, and in several states it was eliminated or restricted.

This paper gives a historical overview of the development of interest arbitration, discussing how and why it developed as it did. This development was neither inevitable nor “natural” in that many other western democracies generally allow public workers to strike. But only a few states in the U.S. allows any public workers to strike. Thus, the question is: why did U.S. law and policy develop the way it did? This paper traces the relevant history from 1919 through to the new, restrictive laws of 2011. It starts with the Boston Police strike of 1919 — a seminal event in the history of public-sector labor law, that had a profound and lasting impact on how U.S. policymakers felt about dispute resolution in public sector labor law. It then turns to the first public-sector labor law permitting collective bargaining — passed, ironically in view of recent events, in Wisconsin in 1959 — and describes how concerns about dispute resolution were central to debates over that law. The paper continues by explaining how interest arbitration in public-sector labor relations has evolved and how it has worked from the 1960s into the 21st century. Finally, the paper explores the very recent developments in this area in the laws of 2011.

Employee Representation in Non-Union Firms: An Overview

Source: Paul J. Gollan, David Lewin, Industrial Relations: A Journal of Economy and Society, Vol. 52 supplement 1, 2012
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From the abstract:
For many decades, employee representation and voice in the employment relationship were manifested mainly through unionism and collective bargaining, but that is no longer the case. Today most employees do not belong to unions, but they may be represented and exercise voice through a variety of other mechanisms and arrangements. This paper provides an overview of a special issue of Industrial Relations containing eight papers that analyze various types of non-union employee representation. These papers feature a wide variety of research designs as well as industry, company, and employee settings. Empirically, they draw upon data from the United States, the UK, Canada, and Australia. As a set, these papers provide the most comprehensive knowledge to date of employee representation in non-union firms, and also offer recommendations for future research to further enhance such knowledge.

Articles include:
The Comparative Advantage of Non-Union Voice in Britain, 1980-2004 by Alex Bryson, Paul Willman, Rafael Gomez and Tobias Kretschmer

Individual Voice in Employment Relationships: A Comparison under Different Forms of Workplace Representation by David Marsden

Participation Versus Procedures in Non-Union Dispute Resolution by Alexander J. S. Colvin

Where Informality Really Matters: Patterns of Employee Involvement and Participation (EIP) in a Non-Union Firm by Mick Marchington and Jane Suter

The Effect of Gender on Awards in Employment Arbitration Cases: The Experience in the Securities Industry by David B. Lipsky, J. Ryan Lamare and Abhishek Gupta

Keeping the Commitment Model in the Air during Turbulent Times: Employee Involvement at Delta Air Lines by Bruce E. Kaufman

Does Non-Union Employee Representation Act as a Complement or Substitute to Union Voice? Evidence from Canada and the United States by Michele Campolieti, Rafael Gomez and Morley Gunderson

The Challenges of a Representation Gap: Australian Experiments in Promoting Industrial Citizenship by Troy Sarina

Using an Independent Monitor to Resolve Union-Organizing Disputes Outside the NLRB

Source: William B. Gould IV, Dispute Resolution Journal, Vol. 66 no. 2, May-July 2011
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Facing an aggressive union-organizing campaign at its U.S. subsidiary, a multi-national company implemented an unprecedented ADR program to address complaints that management violated the company’s corporate social responsibility policy and its commitment to the right of employees to associate with a union. The program, known as the Independent Monitor could be a model for other companies.

How Much Power Does a Labor Arbitrator Have? What the Latest Court Decisions Mean for Arbitrators, Employers, Unions and National Labor Policy?

Source: Lise Gelernter, Buffalo Legal Studies Research Paper No. 2012 – 005

From the abstract:
In 2009, in 14 Penn Plaza L.L.C. v. Pyett, the Supreme Court threw a curve at the collective bargaining world by holding (5-4) that unions could waive the rights of individual bargaining unit members to go to court to resolve employment-related statutory disputes and, instead, could require that such disputes be arbitrated. Pyett raised the specter of the Court taking the final step in merging the legal treatment of arbitration in the collective bargaining world with the treatment of non-labor arbitration, despite the clear points of tension between the basic public policy goal behind labor arbitration, which is to promote industrial peace, and the basic public policy goal behind all other kinds of contractual arbitration, which is to support and encourage private parties’ freedom to contract for alternative ways in which to resolve contractual disputes.

This paper clarifies what the legal trends really are and what they mean for the ‘big picture’ in arbitration as well as for labor arbitrators and the parties who appear before them. After reviewing the history of labor and non-labor arbitration and outlining and comparing the core principles of each type of arbitration, I trace how recent arbitration jurisprudence has crossed the historical divide between labor and commercial arbitration and explore the problems that this creates for labor arbitration as an institution. The trend towards the convergence of labor and non-labor arbitration is not unstoppable, however, and I highlight the ways in which the courts have continued to view arbitration under collective bargaining agreements and non-labor contracts as dichotomous systems with different rules. I also discuss how to deal with the reality of the new hybrid commercial/labor arbitrator that Pyett appears to contemplate and address the ways in which employers, employees and unions can help to retain the procedural and collective bargaining benefits of labor arbitration.

The Conflict Over Conflict Management

Source: David Lipsky and Ariel Avgar, Dispute Resolution Journal, May-October 2010
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Since the rise of alternative dispute resolution (ADR) over the last four decades, there has been another significant development, namely, an approach to dispute resolution called conflict management. There are two main “camps” opposed to conflict management systems. One has a progressive view of conflict and the other has a traditional view.