An interesting article about alternative dispute resolution (ADR) in a labor and employment law context was recently published in the ABA Journal of Labor and Employment Law. In an article entitled “ADR in Labor and Employment Law During the Past Quarter Century,”25 ABA Journal of Labor & Employment Law 411 (Spring 2010), University of Michigan Professor Emeritus of Law Theodore J. St. Antoine discusses important decisions and developments since the U.S. Supreme Court’s 1991 decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). The author also analyzes two bills being considered by the 111th Congress: the Employee Free Choice Act (EFCA) (H.R. 1409, 111th Cong. (2009), and the Arbitration Fairness Act (AFA) (H.R. 1020, 111th Cong. (2009).
In Gilmer, the Court approved contractual “mandatory arbitration” of statutory employment claims, a decision St. Antoine says is “the most significant and most debated ADR decision in labor and employment law during the past quarter century.” St. Antoine argues the AFA’s proposal to prohibit all pre-dispute employment arbitration agreements “seems short-sighted and too heavy-heavy handed” given the evidence that “realistically, pre-dispute agreement to arbitrate, when neither party knows what the future holds, may be the most viable option for both sides.” On the other hand, St. Antoine states the EFCA may “have the most significant impact in history on the use of interest arbitration in the private sector.” The proposed law would amend the National Labor Relations Act by adding a new section “which would provide for interest arbitration in first-contract negotiations if the parties could not reach agreement within 120 days, including a thirty-day mediation period.” The resulting contract would be binding for two years. Currently, only about 39% of unions winning National Labor Relations Board elections are able to enter collective contracts in the first year.
Although focused on the narrow area of ADR in the labor and employment context, the article offers an overview of many ADR issues and utilizes a wealth of primary and secondary sources to explain and support the author’s arguments. St. Antoine also discusses a variety of empirical studies on the use of ADR, as well as other developments such as the prevalence of class action waivers.
The article is available online through the ABA Section of Labor and Employment Law (ABA Password and Login required).
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