The Changing Legal and Legislative Landscape
While this text will address all types of alternative dispute resolution (ADR), we begin by discussing the hottest topic faced by executives, human resource professionals, and their attorneys today: a complaint resolution procedure that results in binding arbitration in lieu of courtroom litigation, The use of binding arbitration as an alternative to courtroom litigation has recently gained increasing acceptance by the courts, Congress, attorneys, employees, and employers. This was not always the case. In the first half of the twentieth century, the courts were generally suspicious of binding arbitration to resolve any type of legal dispute. The first acceptance of workplace arbitration occurred in the labor-management context.
During World War II, the War Labor Board, a federal agency charged with promoting industrial peace, aggressively promoted the use of mediation and binding arbitration to resolve labor-management disputes peacefully and without the use of the strike or lockout. As R. W. Fleming, an academician who also served as an arbitrator, wrote in 1965:
In retrospect it is clear that World War II did three things insofar as voluntary arbitration is concerned. First of all, it encouraged widespread adoption of arbitration techniques. Second, it sharpened the distinction between arbitration over "rights" and interests. Henceforth, it would be clear that the commitment of the parties was to grievance arbitration, not to arbitration of the terms of a new agreement or to substantive issues not covered by the contract. Finally, the War Labor