The ADR Newsletter -
[Cached Version]
Published on: 2/16/2002
Last Visited: 2/1/2003
In a 1986 address before the National Academy of Arbitrators, Attorney Deborah Willig considered the arbitration experience in Title VII cases. (Proceedings of the 39th Annual Meeting, National Academy of Arbitrators, p. 101 et seq.) She noted that there were six potential criticisms of arbitration:
1. Arbitrators wouldn't properly consider statutory rights;
2. Arbitrators would most likely favor the party who could reappoint;
3. Arbitration cases wouldn't be final;
...
Ms. Willig concluded:
"Our examination of arbitral versus judicial resolution of employment discrimination cases has, in fact, changed my opinion about the propriety of the arbitration process in the resolution of discrimination cases.When we began the research for this speech, I thought that we would conclude that the courtroom was the better forum for resolving these claims, and I must admit that I agreed with this conclusion.The courts, I thought, are best equipped to entertain the legal arguments, hear and weigh the evidence, and vindicate the important civil rights created by statute.However, the literature and our own examination leads me to conclude otherwise.
As I hope we have illustrated, most, if not all, of the criticisms leveled at arbitrators' competence in this area are without substance and are belied by the facts and statistics.
...
Ms. Willig in her article noted that 10 percent of the arbitrators were hearing 90 percent of the discrimination cases.This led her to the conclusion that only knowledgeable arbitrators were hearing discrimination cases.
If it could be demonstrated to the parties that knowledgeable, independent arbitrators were available to consider civil rights cases, then arbitration could be a successful means of dispute resolution.Plaintiff and defense attorneys, however, have to be willing to consider arbitration as a means of resolving civil rights cases, whether arbitration occurs after a suit is filed or before.
I suspect that there is a distrust of arbitration among many in the employment bar.This can only be overcome through successful experiences in arbitration, and through professional contact between arbitrators and attorneys.Arbitration in the union/management context has existed for over 60 years.