Arbitration of employment discrimination claims raises serious issues concerning waiver of civil rights and due process protections, limits on discovery and evidence, and potentially biased fact finders. Employees not protected by collective bargaining agreements are particularly vulnerable to accepting one-sided terms. Practitioners in the employment field and ADR providers are working diligently to implement safeguards to make arbitration attractive to all in the workplace. This article focuses on the problems attending pre-dispute agreements for binding arbitration of disputes involving statutory rights and efforts to address these problems. Cooper describes the consensual approaches to dispute resolution, including mediation, that are alternatives to binding mandatory arbitration.
Arbitration involves submission of a dispute to a third party for a decision.
Although arbitration decisions can be binding or non-binding, this article will address only binding arbitration decisions. In theory, parties make a deliberate choice to forego litigation and use arbitration to resolve their disputes. Having made this choice, parties are bound by the arbitrator s decision, with court review limited to very narrow grounds for vacating an award. Employers and employees alike find arbitration attractive primarily for its potential savings in cost, time, and other resources. While it is now common experience that employment discrimination disputes take five or more years to be resolved through the administrative agencies and courts, arbitrations can be scheduled within weeks of the demand and resolved within months.