Alternative Dispute Resolution
DiCesare, Constance B., Monthly Labor Review
Alternative dispute resolution refers to procedures for settling disputes by some method other than a lawsuit. Among the methods employed are arbitration, mediation, and minitrials. Alternative dispute resolution usually is faster and cheaper than going to court, which helps to explain its growing use in resolving labor disputes.
While both mediation and arbitration rely on the services of a neutral third party to resolve a dispute, a mediator has no power to impose a decision on the parties. An arbitrator's ruling, in contrast, is binding on the parties and may be enforced by the courts. Arbitration may be voluntary, that is, by mutual and free consent of the parties, or compulsory, by reliance on a law to enforce the parties' consent. Many State laws require the arbitration of labor disputes involving public employees, and it is common for a union-management agreement having a no-strike clause to specify binding arbitration as the last step in resolving such disputes.
This month's department looks at some of the issues in the debate over greater reliance on arbitration, the most common method of alternative dispute resolution. How do employers and employees view arbitration as a means of resolving workplace conflict without going to court?(1)
Speedy resolution of disputes
Employers and employees generally agree that arbitrating labor disputes is faster than litigating similar claims in court, and it is more likely to preserve a viable working relationship between the parties. Hearing dates usually are scheduled well before a trial date is set, the informality of arbitration procedures encourages speedy hearings, and arbitrators typically render prompt decisions. An additional advantage lies in the fact that the hearing offers each side a chance to tell its story to an outside decisionmaker. Social scientists see this opportunity to experience catharsis as a benefit to all of the parties.(2)
Opponents of arbitration argue, however, that the much-vaunted speediness of the decisions comes at a price: arbitrators are not required to furnish a written opinion giving their reasoning for an award. Another disadvantage is that the awards do not establish any legal precedent.
Even the speed advantage can be questionable or entirely absent in some circumstances. Because there is no routine-motion practice in arbitration, as is found in a court proceeding,(3) a claim that lacks merit usually survives until the arbitration hearing. This means that time is spent preparing and presenting a defense for a claim that probably would have been dismissed at an earlier stage in court.(4)
The right to discovery
An important reason arbitration almost always is faster than litigation is that arbitration places strict limits on discovery--that is, the various pretrial devices (for example, depositions, the production of documents, and physical and mental examinations) used by one party to obtain information from the other party in preparation for the trial. Discovery before an arbitration hearing usually is not available. When it is agreed to by the parties, discovery is conducted within limits set by the arbitrator. The all-too-common litigation practice of "using discovery to beat the other side into submission" is unlikely in the arbitration setting.(5) The neutral arbitrator oversees any agreements the parties make about discovery, issues deposition orders, and can decide to extend a hearing if the need for further discovery arises.
Nevertheless, even a growing recognition that discovery should be available in arbitration is not enough assurance for many practitioners that their clients' legal rights will be preserved. This view is espoused by some members of the plaintiffs' bar, who maintain that the individual has a substantive legal right to obtain relevant information from the opposing party to a dispute, without limits on the type of method used to obtain the information. …