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Mediation and Arbitration of Employment Disputes

Review by: Jane Becker Garzilli
Published by: Jossey-Bass 1999, 223 pages.

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John Dunlop and Arnold Zack, respected authorities on
labor-management relations, have written a well organized, concise
survey of the history and practice of resolving employment disputes out
of court. Individual chapters are devoted to ADR systems developed by
union and management, by private business and by federal and state
entities. Essential components of due process protection are covered in
another chapter. Suggestions for the future of employment law dispute
resolution conclude the book.

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


Jane B. Garzilli

An LLM graduate of Pepperdine's Straus Institute for Dispute Resolution and a mediator for over 10 years, Jane mediates complex business and partnership legal disputes, as well as interpersonal misunderstandings, conflicts, and legal claims in the workplace. Areas of concentration include entertainment, employment, higher education, and contract. Formerly an attorney… MORE >

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