Focus on Arbitration.
Although mediation gets top billing, arbitration is the book’s real focus. Arbitration and grievance procedures enjoy respect by American labor today. The authors attribute social acceptance of these systems to the fairness and due process standards customarily guaranteed under collective bargaining agreements. Equitable procedures have evolved out of the parties’ shared stake in maintaining tranquillity and providing finality through a quick, accessible, inexpensive, predictably routinized alternative to litigation. Arbitration is adjudicatory and binding, but because neither side is inherently favored, trust is preserved.
Due Process Relevant to Mediation.
For mediation to continue to grow and gain widespread acceptance, it must also inspire trust. Due process considerations -- such as right to representation, allocation of costs between the parties, and mediator qualification, selection and neutrality -- matter in mediation, too, even though it is on-adjudicative and self-determinative.
Access to Redress.
Many employment disputes arise in a nonunion context. For these, employees must look to private systems devised by employers and to statutes for redress. Serious issues of due process and fairness plague employer-initiated or mandated dispute resolution systems, discouraging and demoralizing employees. Delays, backlogs, intimidating counsel costs and a plethora of procedures under various statutes and regulations confound and frustrate those seeking statutory protection. Court decisions are mixed and conflicting. Laws and regulations are on the books, but redress is not truly accessible. The nonunion system is a mess.
Future Framework for ADR.
To eliminate these inequities, the authors advocate gradual implementation of a "matrix of policies and procedures to establish a congruent and voluntary system of mediation and arbitration" in employment disputes involving statutory rights. This new framework would replicate the fundamental due process standards of labor-management arbitration. Organizations, private businesses and regulatory agencies would need to coordinate their efforts to assure consistency and fairness within this system.
Due Process Protocol.
Significant progress towards this end was made in 1995. A Task Force comprised of representatives from key professional and political organizations (including SPIDR) developed and signed a Due Process Protocol to guide the resolution of statutory employment disputes. They reached consensus on issues such as an employee’s right to and choice of representation, the parties’ access to reasonably relevant information through limited discovery, and the qualifications and impartiality of neutrals.
Predispute Agreements and Voluntariness.
Unfortunately, the Task Force was unable to formulate an integrated recommendation on a key point -- the timing and voluntariness of an employee’s agreement to seek redress through mediation or arbitration in lieu of going to court. Four different approaches were included in the Protocol, leaving key questions unanswered. For example, when an employee is required to agree to arbitrate a dispute or claim before it actually arises, before he knows the implications of his waiver of access to courts, can his agreement be considered voluntary? Likewise, is it fair to compel an employee to waive the very rights supposedly guaranteed by statute, particularly as a condition of his initial or continued employment? Dunlop and Zack challenge the constituencies involved in employment law, including Congress and the U.S. Supreme Court, to lead the way toward coordinated systems which meet socially accepted standards of fairness and due process.
Mediation Validated and Encouraged.
Far from dismissing the importance of mediation, the authors acknowledge "the vitality of mediation as a superior procedure for reaching mutually acceptable resolution of employment disputes." Mediation is already viewed as an essential component of ADR systems by many government agencies. Moreover, the Due Process Protocol and new AAA rules actually make mediation a prerequisite to arbitration.
We mediators, particularly those involved in resolving employment disputes, will learn much from Dunlop and Zack’s comprehensive and straight-forward overview of an arena with a long history of ADR. We will also gain insight into what constitutes fairness and due process in American society, a sensibility basic to good mediation today and to the development of workable dispute resolution systems in the future.
©2000 Jane Becker Garzilli