Alternate Dispute Resolution

One of the most important trends affecting human rights in the American workplace today is one that has often gone unnoticed; the privatization of civil justice. Thousands of employers are abandoning the civil justice system, establishing their own systems of resolving disputes, and requiring employees to use them. The implications of this trend could not be more important. One of the most profound lessons of the civil rights struggle is that rights without remedies are meaningless. Title VII and our other civil rights laws have been reasonably effective because the judiciary has generally been willing to enforce them. But if employers are able to establish private court systems, under their control, equal employment opportunity laws may become unenforceable.

Paradoxically, the trend to private justice may have potential benefits for employees. Our civil justice system has failed badly at making workplace justice affordable. The cost of public civil justice has grown dramatically in recent years. Many people with legitimate claims against their employer never receive justice because they are unable to afford a lawyer. Private dispute resolution, which relies on mediation and arbitration, is generally much less expensive than litigation, and may bring justice within the reach of many to whom it is currently denied.

This need not be second class justice. Analysis of the available data shows that employee-plaintiffs generally fare as well in arbitration as they do in court, even though most of the experience they reflect took place before the establishment of the due process standards which currently exist. The quality of justice employees receive in arbitrations under these standards should be even better.

The National Workrights Institute believes that the current system of employment arbitration in this country is wholly inadequate. Agreeing to arbitrate should never be a condition of employment. It must be voluntarily entered into by the employee as well as the employer. While there are difficulties in establishing a truly voluntary agreement in an at-will relationship, these problems can be successfully addressed. Arbitration must always provide due process as well. Our intention is to remain involved in the development of private arbitration and shape it so that it becomes a blessing rather than a curse.